Petition for Writ of Certiorari — Herford v. Sun Pipe Line Co.

85-9 04

| a

In The

Supreme Court of tne United States

October Term, 1985

————————

HENRY G. HERFORD,

Petitioner,

SUN PIPE LINE COMPANY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ray

Vv

ORIGINAL BRIEF ON BEHALF OF

PETITIONER HENRY G. HERFORD

ray

U

Paut Henry Kipp

Kipp & Kipp

233 South Grand Street

P.O. Drawer 3168

Monroe, Louisiana 71210

(318) 325-3884

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

(1) Whether a clearcut factual dispute concerning

the interruption of the period for processing an internal

grievance in conformity with the Collective Bargaining

Contract precludes the issuance of summary judgment,

thus rendering Local Rule 47.6 of the Fifth Cireuit in-

appheable to the order of the Lower Court.

(2) Whether the failure of a Collective Bargaining

Agreement to specifically establish a grievance procedure

as the sole and exclusive means of dispute resolution al-

lows the aggrieved employee to file a Section 301—breach

of contract action—without resort to company remedies;

and further, whether a grievance procedure providing no

opportunity for review by an impartial decision-maker

renders exhaustion of said remedies futile, as per the de-

cisions of the court in Vaca v. Stipes, 386 U.S, 171, 87 S.Ct.

903, 17 L.Ed.2d 842 (1967) and Glover v. St. Louts—S.F.

Ry. Co., 393 U.S. 324, 89. S.Ct. 548, 21 L.Ed.2d 519 (1969),

as Well as the decisions of the Fifth Cireuit in Fitman v

New Orleans Public Service, Inc., T30 F.2d 359 (Sth Cir

1984), and Rabalais v. Dresser Industries, Inc., 566 F.2d

516 (Sth Cir. 1978), thus excusing any alleged nonex

haustion.

>

(3) Whether the failure of an employer to respond

to a written complaint meeting all of the express require

ments of an internal grievance amounts to a repudiation

of the terms of the Collective Bargaining Contract, thereby

estopping defendant from later asserting nonexhaustion

of contractual remedies as a defense.

1

TABLE OF CONTENTS

Page

Questions Presented

Table of Authorities il

Opinion Below 1

Other Relevant Actions and Opinions Below 3

Statement of Jurisdiction 2

Statutory Provisions Involved 3

Statement of the Case t

Reasons for Grantine Writ i

Argument Q

Conclusion 16

Appendix App. 1

TABLE OF AUTHORITIES

("ASES:

Boone v. Armstrona ee rk + ee ps4 Od IR ‘et }

Cir. 1967) 15

Day v. United Automobile. Aero. & Aar. In

Whkrs. Loe al OO, 466 Pd SO) (6th Cir. 1972) 1

Kitman ve. New Orleans Public Servi eC, Ine. T30

Pd 359 (Sth Cir. 1984) 1

FP. OW. Woclworth Co. v. Miscellaneous Ware

housemen’s, 629 F.2d 1204 7th Cir. 1980) 14

Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 824,

SY S.Ct. O48, 21 Li. lked.2d 519 (1969) 13, 14

l[nternational Union. lmnited Auto. Ete. v. Webster

Blec. Co., 299 F.2d 195 (7th Cir. 1962) l4

Johnson Farm Equipme nt Co. ve. Cook

119 (Sth Cir, 1956) 10)

TABLE TF AUTHORITIES—Continued

Paw

Magill ?. Gulf cl HWoestern lundustries, inc.. 136

F.2d 976 (38rd Cir. 1984) 11

Neely v. St. Paul Fire and Marine Ins. Co., d84

F.2d 341 (9th Cir. 1978) 10

Rabalais v. Dresser Industries, Inc., 566 F.2d 516

519 (Sth Cir. 1978) 13, 15

Re publi Nieel Corp, v. Maddox, 379 LS. GOO. Sd

S.Ct. 614 (1965) 14

Scott v. Anchor Motor Freight, Inc., 496 F.2d 276

(6th Cir. 1974) i 11

Vaca v. Stipes, 386 U.S. 171, 184, 87 S.Ct. 9038, 17

L.ed.td 842, 854 (1967) 12, 13, 1d

Misce! LANEOUS:

28 ULS.C, 2101 2

Mederal Rules of C'1\ il Procedure Rule 6 | A ie % B ),

ey 3

29 U.S.C, § 185 (A), (B) 3.7

Loeal Rule 47.6 of the Fifth Cireut 8.9.7)

Article VI (A) of the Colleetive Bargaining

Agreement rt)

Article Vi. Seetion 1 of the Colleetive Bargain

ing Agreement 12, 14

Subsection 3 of Article V1 1

Oo —

In The

Supreme Court of the United States

October Term, 1985

— -Q- —————————

HENRY G. HERFORD,

Petitioner,

SUN PIPE LINE COMPANY,

Respondent.

—— ——Q-- |

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

o— ~-—--

The petition of Henry G. Herford respectfully requests

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Cireuit rendered in these proceedings on July 23,

1985, rehearing denied on August 27, 1985.

——-— — —-- O- -- -- sy

OPINION BELOW

The judgment and opinion of the United States Court

of Appeals for the Fifth Cireuit, concerned herein is cited

as — I .2d —, unreported at the time of filing this petition,

l

fo

bearing docket number 84-4660, appended hereto as Ap-

pendix ‘*A’’, page App. 1, hereof, and the denial of rehear-

ing thereon dated August 27, 1985 is appended hereto as q

Appendix ‘*B’’, pages App. 2-App. 3, hereof,

a>.

AY

OTHER RELEVANT ACTIONS

AND OPINIONS BELOW

(1). Judgment and rulings of the United States Dis-

trict Court for the Western District of Louisiana dat-

ed October 3, 1984, and September 17, 1984 (See, Ap-

pendix ‘*C’’, pages App. 4-\pp. 9, hereof).

(2). Pages 8-15 of Petitioner’s February 23, 1984

Deposition (See, Appendix ‘*D’’, pages App. 10-App.

17, hereof),

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Cireuit was rendered on July 28, 1985. (See,

Appendix ‘‘A°*’, page App. 1, hereof), a timely application

for rehearing was filed and subsequently denied on August

27, 1985. (See Appendix ‘*B*’, pages App. 2-App. 3, here-

of).

The jurisdiction of this Honorable Court is invoked

pursuant to 28 U.S.C. 2101 and Rules 17.1 and 20 of the

rules of this court. This Application for Certiorari is filed

in conformity with Rule 21 of the rules of this Honorable

Court.

3

STATUTORY PROVISIONS INVOLVED

Rule 56 (A), (B), (C) of the Federal Rules of Civil

Procedure provides:

“A party seeking to recover upon a claim, counter-

claim, or cross-claim or to obtain a declaratory judg-

ment may, at any time after the expiration of 20 days

from the commencement of the action or after service

of a motion for summary judgment by the adverse par-

¥, move with or without supporting affidavits for a

summary judgment in his favor upon all or any part

hereof.”

“A party against whom a claim, counterclaim, or

cross-claim is asserted or a declaratory judgment is

sought may, at any time, move with or without sup-

porting affidavits for a summary judgment in his fa

vor as to all or any part thereof.”

“The motion shall be served at least 10 days be

fore the time fixed for the hearing. The adverse party

prior to the day of hearing may serve opposing affi-

davits. The judgment sought shall be rendered forth-

with if the pleadings, deposition, answers to interrog

atories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as

to any material fact and that the moving party is en-

titled to a judgment as a matter of law. A summary

judgment, interlocutory in character, may be rendered

on the issue of liability alone although there is a genn-

ine issue as to the amount of damages.”

29 U.S.C, § 185 (A), (B) provides:

“Suits for violations of contracts between an em-

plover and a labor organization representing employ-

ees 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.”

4

“Any labor «ganization which represents em-

ployees in an industry affecting commerce as defined

in this act and any employer whose activities affect

commerce as defined in this act shall be bound by the

acts of its agents. Any such labor organization may

sue or be sued as an entity and in behalf of the em-

ployees whom it represents in the courts of the United

States. Any money judgment against a labor organ-

ization in a district court of the United States shall be

enforceable only against the organization as an entity

and against its asseis, and shall not be enforceable

against any individual member or his assets.’

—- Oh -——

STATEMENT OF THE CASE

On October 13, 1982, petitioner, an employee of Sun

Pipe Line Company (hereinafter referred to as Sun) for

approximately thirty-seven (37) vears, received a mes-

sage from company officials to be present at a meeting

to be conducted in Monroe, Louisiana, the following day.

Petitioner immediately contacted Mr. Hank Face, his union

representative, who was unaware of the exact nature of

the meeting. Pursuant to the orders of company offi-

cials, petitioner met with Sun representatives on the morn

ing of October 14, 1982. The union representative, who

had flown to Monroe, Louisiana, from Longview, Texas,

in order to be available to petitioner for the mecting was

not present at the meeting and did not consult with peti

tioner at any time prior to or during the meeting. R. 122.

Following a brief interrogation by company investi

gators, petitioner was notified of the termination of his

employment with Sun Pipe Line Company on the same

day, for allegedly violating ‘‘company poliey."* Peti-

tioner was not made aware of the particular grownds for

his termination by either Sun officials or his union repre

sentative. R. 124.

Subsequent to the October 14, 1982, meeting there

was no discussion between petitioner and his union rep

resentative concerning the exhaustion of administrative

grievances as provided by the Collective Bargaining Con

tract. At this time petitioner was under the impression

that the general policy of his union was to avoid all po-

tential conflicts with management by assuming a very

limited role in the employee grievance process. Petition

er’s conclusion was based upon the fact that during the

course of his lengthy employment, he had no independent

recollection of any Sun employee filing a grievance against

the company through the union representative. For this

reason, petitioner concluded that it would be futile to rel)

upon union representation and felt compelled to retain

legal counsel, R. 175-179.

Petitioner worked to and through October 16, 1982,

which was designated as his separation date. R. 180. On

the afternoon of October 20, 1982, petitioner contacted

the undersigned counsel in connection with the pursuit

of all available remedies against his former employer. R.

177. On the same date, petitioner contacted the Louisiana

State Employment Security Office for the purposes of

requesting unemployment compensation and ascertaining

the reasons for his termination. R. 177. Petitioner then

requested a copy of his employment contract from his

union representative for the purpose of pursuing all avail-

able administrative and judicial remedies. R. 177. The

requested information was not supplied to petitioner or

his counsel for several days. R. 122.

6

It was not until November 1, 1982, that petitioner was

informed by the Lovisiana State Employment Security

Office that the action of Sun had been based upon aggra-

vated misconduct in the form of alleged incidents of theft

and dishonesty concerning the misappropriation of com-

pany property and labor. R. 17. On November 2, 1982,

petitioner, through the undersigned counsel, contacted Sun

Pipe Line Company through Mr. Wendall A. Holloway,

its southwest area manager, in an attempt to pursue all

available administrative remedies. R. 181-182. On this

occasion petitioner informed Sun that his termination had

represented nothing more than a form of harassment. and

retaliation directed against him in response to his official

complaints regarding the company’s violation of state and

federal laws governing the production of oil. R. 181. On

November 11, 1982, petitioner’s communication was re-

ferred to Mr. J. A. Ladner, Sun’s ehief legal counsel. R.

183. At no time subsequent to his November 2, 1982, com-

munication did Sun, through any of its employees or rep-

resentatives, notify petitioner that his complaint had been

denied on the merits or denied as untimely filed.

An administrative hearing was conducted by the Louis-

iana State Employment Security Office on January 27,

1983, with regard to petitioner’s application for unem-

ployment compensation. On March 7, 1983, the Louisiana

State Employment Security Office determined petitioner

to be fully eligible for unemployment compensation due

to the failure of Sun to prove that he had been discharged

for misconduct in connection with his employment. R. 21.

Despite these findings, Sun officials took no action con

cerning petitioner’s pending complaint.

On April 28, 1983, petitioner filed suit in the [ifth

Judicial District Court of the State of Louisiana, alleging

retaliatory discharge and the breach of contract. R. 16-

21. Petitioner’s State Court pleading merely alleged that

the company had breached the terms of the contract by

terminating him without just cause, and did not specific-

ally allege a violation of the Collective Bargaining Agree-

ment. Subsequent to the petition of the defendant. seek-

ing removal, the cause was removed to the United States

District Court for the Western District. of Louisiana on

the basis of federai diversity and the authority of the

Labor Management Relations Act; 29 U.S.C. 4 185. R. 1-6.

Following the denial of petitioner’s Motion to Remand

the cause to the Fifth Judicial District Court, R. 50-56, the

original complaint was amended to further allege the vio-

lation of a Collective Bargaining Agreement, defamation,

and the violation of eivil rights. R. 83-90. Petitioner’s

deposition was taken on February 23, 1984.

Defendant filed a Motion for Summary Judgment on

May 3, 1984. R. 105-121. The United States District

Court for the Western District of Louisiana granted Sum-

mary Judgment on September 17, 1984. The United States

Court of Appeals for the Fifth Cireuit affirmed the ruling

of the District Court on July 25, 1985. Rehearing was

denied on August 27, 1985.

REASONS FOR GRANTING WRIT

This Honorable Court should and ought to grant a

Writ of Certiorari to the United States Court of Appeals

for the Fifth Cireuit beeause:

(1). The Judgment sought to be reviewed herein im-

properly disposed of petitioner’s appeal pursuant. to

Local Rule 47.6 of the Fifth Cireuit, despite the exis-

tence of a genuine factual dispute regarding the in-

terruption of the period of time for filing an internal

grievance ;

(2). The judgment sought to be reviewed herein in-

correctly applied the exhaustion doctrine even though

the Collective Bargaining Agreement in question

failed to establish an internal grievance procedure

as the sole and exclusive means of dispute resolution ;

said omission clearly allowed the aggrieved employee

to bring a Section 301—breach of contract action—

without resort to company remedies;

(3). The judgment sought to be reviewed herein in-

correctly applied the exhaustion doctrine although

the contractual grievance procedure in question failed

to provide an opportunity for review by an impartial

decision-maker, thereby rendering exhaustion futile

and excusing any alleged nonexhausiton of contractual

remedies; and

(4). The judgment sought to be reviewed herein in-

correctly applied the exhaustion doctrine despite con-

duct on the part of the employer which amounted to a

complete repudiation of the remedial procedures pur-

portedly provided by the Collective Bargaiming Con

tract.

°o

!

ARGUMENT

(A). The panel opinion improperly disposed of petition-

er’s appeal pursuant to Local Rule 47.6 of the Fifth Circuit

despite the existence of a genuine factual dispute regard-

ing the interruption of the fifteen (15) days period for fil-

ing an internal grievance—namely, the exact time at which

petitioner first became aware of the actual reason for his

abrupt termination and therefore able to file a grievance

adequately presenting the facts upon which said grievance

was based.

A significant portion of petitioner’s argument is based

upon the notion that the fifteen (15) days period for

processing an internal grievance was interrupted by the

failure of company officials to adequately notify him of

the reason for his abrupt termination, thereby preventing

him from presenting the facts upon which his grievance

was based, as required by Article VI (A) of the Collce-

tive Bargaining Agreement. The precise time at which

petitioner was made aware of the aetual reason for his

termination is a fact question whieh is subject to conflict

ing evidence.

Only two months prior to his termination petitioner

had been threatened with dismissal in connection with dis

putes involving several employees of Sun Protection Com-

pany. See /lerford Affidavit, (Exhibit 5). Petitioner

arrived at the October 14, 1982, meeting believing that the

subject of the day involved further difficulties with pro

duction personnel. Herford Deposition, P. 8. Although

petitioner was generally questioned about several inci-

dents which later served as the basis of the allegation of

theft reported to the Louisiana Office of Employment Se-

curity, he was not specifically accused of theft, or dishon-

esty at such time. This contention is berne out by peti.

_ ‘

a

10

tioner’s deposition, as well as fact that, according to de

fendant’s Fifth Cireuit brief, Sun officials approached

the meeting with coneerns of ‘*nossible dishonesty.”” See,

Defendant’s Brief, P. 3.

Petitioner testified that after being questioned about

certain invoices, the Sun investigators confirmed his sus-

picion that he was actually being investigated in connec-

tion with his various problems with Sun production per-

sonnel, Hlerjord Deposition, P. 15. The formal letter ot

termination merely provided that petitioner's dismissal

was based upon a violation of ‘‘company poliey.’’ Peti-

tioner’s deposition, when read in its entirety, supports

his contention that he was unaware of the reasons for

his termination. Given the nature of the previous threat

of termination, as well as the statement attributed to at

least one of the Nun investigators, and the vague nature

of the letter of termination, petitioner was reasonably jus

tified in eoneluding that he was being fired as a result of

ongoing disputes with production personnel.

It shovid be apparent that a genuine factual dispute

exists between the positive testimony of petitioner and

the hearsay information provided by Wendell Holloway,

as to when petitioner was actually informed of the rea

sons for this discharge. Because this factual dispute may

only be resolved by evaluation the eredibility and de

meanor of the witnesses, Summary Judgment was clearly

inappropriate. See, Neely v. St. Paul Fire and Marin

Ins. Co., d84 F.2d 341 (9th Cir, 1978) (Cin considering a

Motion for Summary Judgment the court decides a pure

question of law and is not permitted to weigh the evidence

or judge the credibility of witnesses); Joleson Farm

Liquipment Co. v. Cook, 230 F.2d 119 (Sth Cir. 1956) Ca

1]

court is not at liberty to engage in a credibility evalua-

tion for the purposes of a Summary Judgment); and,

Magill v. Gulf & Western Industries, Inc., 736 F.2d 976

(8rd Cir. 1984) (Summary Judgment. is inappropriate if

an issue depends upon credibility of witnesses since credi-

bility can only be determined after the trier of fact ob-

serves the demeanor of witnesses). See, also, Scott v.

Anchor Motor Freight, Inc., 496 F.2d 276 (6th Cir. 1974)

(whether an employee has attempted to exhaust the griev-

ance and arbitration procedures established by the Col-

lective Bargaining Agreement prior to bringing suit is a

question of federal law and subject to proof at trial).

Because Summary Judgment was inappropriate, it

logically follows that Local Rule 47.6 was inapplicable to

the order of the lower court.

(B). The panel opinion failed to apply the well estab-

lished jurisprudence of this Court, as well as the law of the

Fifth Circuit, which recognizes that exhaustion of internal

remedies is futile, and therefore unnecessary, in those cir-

cumstances in which the Collective Bargaining Agreement

fails to provide for arbitration or review by an impartial

decision-maker.

An adequate discussion of the legal issues involved

initially requires a detailed analvsis of thedanguage of the

applicable Collective Bargaining Contract. The clear and

unambiguous language of the Collective Bargaining Agree-

ment provides that the internal grievance procedure is

‘*strictly limited to disputes arising over the interpreta-

tion of this agreement.’’ R.72. This contractual language

implies that a dispute not involving the interpretation of

the contract is not susceptible to the grievance procedure.

It is urged that the questioned contractual language mili

9

tates against the exclusivity urged by the defendant in the

court below.

‘

Moreover, it should be noted that the so-called five-

step internal grievance procedure repeatedly alluded to

by defendant merely provides for a complaint to be ini-

tially processed to the immediate supervisor; then to the

superintendent; and then, subject to the diseretion of the

governing board of the association, to the manager of

operations. (See Article VI, Section 1 of the Collective

Bargaining Agreement). The grievance procedure con-

spicuously fails to provide for arbitration or any other

effective remedy for the enforcement of the rights sup-

posedly conferred by the agreement.

Finally, subsection 8 of Article VI of the questioned

agreement invites aggrieved employees to forego the five-

step internal grievance process, as well as the interven.

tion of the association, by presenting a grievance directly

to the company for adjustment. This language obviously

undermines defendant’s argument of exclusivity, since the

contract recognizes an alternative to the five-step griev-

ance procedure.

The erux of petitioner’s argument involves two sig-

nificant omissions within the questioned Collective Bar-

gaining Agreement. In the first instance, the agreement

fails to-specifieally establish an internal grievance proced-

ure as the sole and exclusive means of resolving a dispute

eoneerning discharge without just cause. See, Vaca v.

Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Bd.2d 842, 804

(1967) (“If a grievance and arbitration procedure is in-

cluded in the contract, but the parties do not intend it to

be an exclusive remedy, then a suit for breach of contract

will normally be heard even though such procedures have

not been exhausted.”).

Secondly, the agreement fu’ er fails to establish any

means for the enforcement of the rights and benefits sup-

posedly created by the contract. As such, the agreement

facially created significant rights without providing an

effective remedy in the form of a final decision by an im-

partial factfinder. In this regard, it is relevant to note

that the vast majority, if not all, of the recently reported

labor law cases of the lower federal courts use the terms

“grievance” and “arbitration” synonymously.

The lower federal courts and particularly the Fifth

Circuit, have recognized that “a grievant may file suit

without fulfilling the exhaustion requirement if: (1) the

union wrongfully refuses to process the grievance: (2)

the employer’s conduct amounts to a repudiation of the

contract’s remedial procedures: or, exhaustion would be

futile because of the lack of an impartial decision-maker.”

Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359,

362 (Sth Cir, 1984), citing, Vaca vr. Stipes, supra. (Empha-

sis added.)

In Rabalais +. Dresser Industries, Inc. 566 F.2d 516,

O19 (Sth Cir, 1978), The Fifth Cireuit found that “exhaus

tion of contractual remedies would be futile because the

aggrieved employee would have to submit his claim to a

group Which is in large part chosen by the [employer and

union] against whom [his] real complaint is made.” The

Rahalais deeision Co? rectly cited the holding of this Court

in Glover v. St. Louis - SP. Ry. Co., 393 U.S. 324. 89 S.Ct.

O48, 21 L.ed.2d 519 (1969

The tact that th vTie\ anee procedure sec lorih 1\ the

questioned Collective Barcaininge Contract railed lo pre

14

vide for review of the complaint by an impartial decision-

maker, but instead provided for ostensible review by com-

pany officials, without an arbitration provision, clearly

brings this case within the Glover decision.

The total absence of a provision for the review of an

employee’s complaint by an impartial decision-maker left

appellant, for all practical purposes, with no forum in

which to present his discharge without just cause complaint.

As such, the question as to whether appellant was in fact

disciarged without just cause was properly a question for

the judiciary to resolve. See, FV. Woolworth Co. v. Mts-

celaneous Warehousemen’s, 629 F.2d 1204 (7th Cir. 1980),

and International Union, United Auto, Ete. v. Webster

Elec. Co., 299 F.2d 195 (7th Cir. 1962).

(C). The panel opinion failed to consider conduct on the

part of the employer which amounted to a repudiation of

the remedial procedures purportedly provided by the Col-

lective Bargaining Contract and further estopped the em-

ployer from later asserting nonexhaustion of internal rem-

edies as a defense.

Although petitioner was not required to present his

discharge without just cause complaint to various company

officials prior to resorting to judicial remedies, it is shown

that petitioner nonetheless ‘‘attempted*’* to exhaust all

available internal remedies, as per the rule of Republic

Steel Corp, v. Maddox, 379 U.S. 650, 85 S.Ct. 614 (1965),

within one day of discovering the reasons for his discharge.

The record shows that petitioner, through the undersigned

counsel, wrote a letter to defendant on November 2, 1982,

which conformed to the requirements of Subsection 1 of Ar-

ticle VI of the Collectve Bargaining Contract. At no time

since November 2, 1982, has defendant formally acted up-

15

on the grievance filed by petitioner or notified petitioner

that his grievance was untimely. Ag such the inaction of

the defendant estopped defendant from later raising the

alleged nonexhaustion of remedies as a defense.

“An obvious situation in which the employee would

not be limited to the exclusive remedial procedures estab-

lished by the contract occurs when the conduct of the em-

ployer amounts to a repudiation of . . . contractual pro-

cedures ... in such a situation . .. the employer is es-

topped by his own conduct to rely on the unexhausted

grievance and arbitration procedures as a defense to the

employee’s cause of action.” See, Vaca v. Stpes, supra, 17

L.Ed.2d at 855 (citations omitted). See also, Day v. United

Automobile, Aero. & Agr. Imp. Wkrs, Local 36, 466 F.2d

83 (6th Cir. 1972) (‘tan emplover may be estopped from a

defense that an employee in a Collective Bargaining Agree-

ment has not exhausted his administrative remedies”). For

this reason, the inaction and indifference of the emplover

in totally ignoring the grievance procedure purportedly

established by the Collective Bargaining Contraci, must

be deemed to constitute “a repudiation of the remedial pro-

cedures specified in the contract.” Rabalaws v. Dresser

Industries, Inc., supra, 566 F.2d at 519, citing Boone v.

Armstrong Cork Co., 384 F.2d 285 (Sth Cir, 1967).

——————— ——0O—-_ --— ———

16

CONCLUSION

WHEREFORE, petitioner Henry G, Herford respect

fully requests that this Honorable Court issue a Writ of

Certiorari to review the July 23, 1985, order of the United

States Court of Appeals for the Fifth Cireuit, and that

after due proceedings this court issue a decree reversi

said order of the United States Court of Appeals for thy

hifth ¢ re

Pact Henry bl

Monroe, Louisiana 71210

31S) Bvo-oSS4

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FLETH CIRCUIT

No. 84-4600

HENRY G. HEREFORD

Plaintiff-Appellant,

VERSUS

SUN PIPE LINE COMPANY,

\ppeal from the United States Distriet Court

or the Western Distriet o Lousiana

(.] ty >. LOSS

fjefore RANDALL, DAVIS and HILL, Cireuit

eR CURLAM

AFFIRMED. See Local Rule 47.6

App. 2

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUTT

\

VERSUS

SUN PIPE LINE COMPANY.

Del nt-A}

\ ~ i) {

i \\ i}

App. 4

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

CIVIL ACTION NO. 83-1415-M

HENRY G. HERFORD

VERSUS

SUN PIPE LINE COMPANY

JUDGMENT

(Filed October 3, 1984)

Having duly considered the defendant’s Motion For

Summary Judgment and its Memorandum In Support

Thereof, and having duly considered the petitioner’s Re-

sponse In Opposition To Defenda:t’s Motion For Summary

Judgment, and its Motion For A New Trial, and based upon

the Ruling of this Court dated September 17, 1984;

IT IS HEREBY ORDERED that all claims of plain-

tiff Henry G. Herford, except his defamation claims, be,

and the same hereby are dismissed in their entirety at

plaintiff's costs.

THUS DONE AND SIGNED at Alexandria, Louisiana

on this 3d day of October, 1984.

Judgment Entered 10-4-84

By (Lllegible)

Copy To Kidd

Gear

/s/ Norman. Scott

UNITED STATES DISTRICT JUDGE

App. 5

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

MONROE DIVISON

CIVIL ACTION NO. 83-1415

HENRY G. HERFORD

-VS-

SUN PIPELINE COMPANY

RULING

(Filed October 3, 1984)

This matter is now before us on a Motion to Recon-

sider the Court’s Ruling on the Motion for Summary Judg-

ment. The complainant, Henry G. Herford, filed a Motion

for a New Trial, and attached a memorandum in opposition

to the Motion for Summary Judgment. The Court will

consider the complainant’s motion as a Motion to Recon-

sider the Court’s Ruling on the Motion for Summary Judg-

ment.

We find that there is no material issue of fact that

Henry G. Herford was aware of the existence of the griev-

ance procedure (see Herford deposition, p. 24., lines 22-23),

and that there is no material issue of fact that after Her-

ford’s discharge, Mr. Herford was informed by Mr. Face

that Herford could file a grievance in this matter. (See

Herford deposition, p. 24, lines 24-25; p. 25, lines 1-4; and

also affidavit of Mr. Hank Face).

We hereby affirm our Ruling, granting the Motion for

Summary Judgment and the reasons set forth in support

thereof.

App. 6

DONE AND SIGNED at Alexandria, Louisiana, on

this 3d day of October, 1984.

/s/ Norman 8S. Scott

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

CIVIL ACTION NO. 83-1415

HENRY G. HERFORD

-VS-

SUN PIPELINE COMPANY

RULING

(Filed Sep. 18, 1984)

This matter is now before us on a Motion for Sum-

mary Judgment filed by the defendant, Sun Pipeline Com-

pany, on May 3, 1984. A Motion for Extension of Time

in which to respond to this Motion for Summary Judg-

ment was filed by the plaintiff on May 15, 1984. On May

15, 1984, a sixty-day extension was granted to the plaintiff

aud the hearing date was upset and rescheduled for July

16, 1984 at 9:00 am. That date was then upset and re-

scheduled for hearing on Augsut 138, 1984 at 9:00 a.m. On

August 13, 1984, a Motion for Continuanee of the hearing

scheduled for August 13, 1984 was filed by the plaintiff.

On August 13, 1984, an extension of time was granted by

the Court, in which all parties were to take depositions

and submit all memoranda, in support of and in opposi-

tion to the Motion for Summary Judgment. The Court

App. 7

ordered that the memoranda be submitted to the Court by

September 12, 1984.

In view of the numerous delays granted by this Court,

we will consider the merits of this motion based upon the

record, without need for oral argument.

The facts are uncontroverted. On October 14, 1982,

the complainant, Henry G. Herford, was advised of the

termination of his employment with Sun Pipeline Com-

pany. There was in existence at this time a collective

bargaining agreement between Sun Pipeline Company

and the Sun Pipcline Employees Association, the latter

of which complainant was a member in good standing. Any

dispute or grievance that Henry G. Herford may have had

over his discharge was subject to Article VI of the col-

lective bargaining agreement, which provides an exelu-

sive contractual grievance procedure for the resolution of

disputes.

Henry C. Herford was aware of the existence of the

collective bargaining agreement between Sun _ Pipeline

Company and the Sun Pipeline Employees Association that

covered the period from February 1, 1982 to February 1,

1984. Mr. Hank Face, Sun Pipeline Employees Associa-

tion President and union representative for Henry G. Her-

ford, advised Mr. Herford on October 13, 1982 and on

October 20, 1982 that Mr. Herford could file a grievance

over his discharge. Mr. Hertford chose not to file a griev-

ance. After the expiration of the fifteen-day period for

filing grievances, set out in Article VI of the collective

bargaining agreement, complainant’s counsel contacted

Sun Pipeline Company by letter dated November 2, 1982,

threatening litigation. This action was filed on April 28,

1983 in State court, six months and one week after the

App. 8

discharge on October 14, 1982. The case was then removed

to this Court on June 2, 1983.

The complaint alleges a breach of a collective bar-

gaining agreement under Section 301 of the National

<

Labor Relations Act, 29 U.S.C. § 185.

We find that individual suits for breach of a collee-

tive bargaining agreement must. be dismissed where there

has been no exhaustion of the contractually established

grievance procedures. Republic Steel Corp. v. Maddox,

379 U.S. 650, 85 S.Ct. 614, 12 L.Ed.2d 580, 58 L.R.R.M.

2195 (1965). An employee may not sidestep the griev-

ance procedure provided in the contract, pursuant to the

strong Federal policy favoring deference to dispute reso

lution procedures agreed upon through collective bargain.

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

91 L.R.R.M. 2481 (1976). We find that the uneontro-

verted faets establish that the complainant has failed to

exbaust his contractual remedies under the existing col

lective bargaining agreement. Although the Union’s Pres

ident solicited the filing of a grievance over the discharge

within the fifteen-day limitation period of the grievance

procedures, the complainant chose not to file such a

grievance.

Absent either employer repudiation of the contrac

tual procedures, or the Union wrongfully refusing to proc-

ess the grievances, summary judgment is appropriate in

this ease. Hines v. Anchor Motor Freight, Inc., supra;

Vaca v. Sipes, 886 U.S. 171 (1967); Coe v. Rubber Work-

ers, 071 F.2d 1349, 98 L.R.R.M. 2504 (5th Cir. 1978).

The allegations in the complainant’s Amended and

Supplemental Complaint, on intentional infiiction of men-

App. 9

tal distress or emotional injury, are grounded on Louisi-

ana law and are preempted by Section 301 of the National

Labor Relations Act. All of these allegations constitute

a single claim for relief for breach of a collective bar-

gaining agreement. The State law claims are inextricably

intertwined with the breach of collective bargaining claim

and are preempted by the exclusive application of Fed-

eral law in this area. Brice v. McDonald Douglas Corp.,

111 L.R.R.M. 2031 (D.C. Ca. 1982).

We therefore find that as to all claims, except the

complainant’s defamation claims, stated in the complain-

ant’s Amende« and Supplemental Complaint, are properly

dismissed on this Motion for Summary Judgment. We

find that no genuine material issue of fact exists and that

the mover is entitled to summary judgment as a matter

of law.

It is hereby ORDERED that the Motion for Sum-

mary Judgment be GRANTED and that the defendant

submit a formal judgment within ten days of the signed

date of this Ruling.

DONE AND SIGNED at Alexandria, Louisiana, this

17th day of September, 1984.

s/ LIlledgible ail er ee

UNITED STATES DISTRICT JUDGE

App. 10

APPENDIX D

(p. 8) Mr. Jett at that point?

A No. No, 1 didn’t call him.

() Do you recall calling a Mr. Face with the Union

that night?

A Yeah, I called Mr. Face, Hank Face, the

() What did you tell him or find out from him?

A 1 asked him what—-what was going—asked him

did he know of anything going on. He said, **No,’” le

had to report to the plane at nine o’clock the next morn-

ing at the airport.

( Did you indicate that you had some idea what

might be involved?

A No. We—we discussed it and had—l just thought

it was some more of the stuff that | was having trouble

with Sun Oil on moving the oil.

( Sun exploration?

A Production department.

() Sun production?

A Ub-huh (yes).

Q Okay.

Mr. Kidd: Why don’t you, Henry, make a dis

tinction when you're talking about Sun, whether

it’s production or the pipe line,

A This—this—this is Sun Production Department,

App. 11

() Well, theyre separate corporations; you know

that?

(p.9) A Yes, sir. Yes, sir, 1 thought it the same as

different companies altogether.

Q@ So if you would when you're referring to the Sun

production people, call it as Sun Production; and when

you’re referring to Sun Pipe Line, to that corporation, if

you'd eall it Sun Pipe Line, that would probably help us

out in a month or so when we read back through this

transcript.

Mr. Kidd: And for the record, if you don’t mind,

when—I think he’s made reference to Sun Oil

two or three times, and my understanding was

he was referring to Sun Production. Is that right

or wrong?

Mr. Herford: That’s right. That’s right.

Mr. Gear: All right, then.

Mr. Herford: That’s all Sun Production that we

have discussed,

Q Okay. So you on October 14 came to Monroe for

this meeting?

A Yes, sir, at eleven o'clock.

() Who did you meet with first?

c

A In the lobby of the Holidome I ran into Mr. Hollo-

way and he in—he took me down and said he wanted to—

for me to meet two fellows and for me to answer all their

questions.

() And who were there?

App. 12

(p. 10) A I don’t remember their, names, the—the

two fellows.

@ Mr. Mike Caldwell: Does that sound right?

A Is he a blond—big blond-headed fellow?

( There were two people, | understand, to be there.

One was a Mr. Caldwell and one was a Mr. Arbogast.

A Mr. Arbogast, | remember him being there, but

the other fellow, I do not know his name.

® All right.

Mr. Kidd: How do you spell that name

Mr. Gear: A-r-b-o-g-a-s-t.

Q Mike Caldwell and Carl Arbogast was my infor-

mation on that, but—

A I’ve got his card in here, one reason I know his

name.

() So you were introduced to these gentlemen, huh?

A To answer their—all questions.

Q@ And where did y’all go, into a room at the Holi-

dome?

A Mr. Holloway carried me into this room in the

Holidome.

@ Could you tell us what was said while y’all were

in this room, please?

A Well, it quite a bit of questions. They asked

me different—about different things that was taking-

that I had done on how some tickets was signed out. of

oh, for (p. 11) instance, like they was sandblasting all the

stations in the Delhi ield where we were purchasing oil

and painting them, and I would charge the time te right-

of-ways and send for them to do that that way and not

charge this showing the air compressor and stuff out there

that—-and they wanted to know who give me authority to

do that, and | told them Mr. Ellis Carre and Joe Rizzo at

that time.

Q Who was that? Rizzo?

A Rizzo. He was a con—a assistant foreman. And

would repaint it and I’d have to—

@ What other items did they mention to you?

A Something about stealing oil, three or—or steal-

ing oil and how did | go about getting it and what did

l use it for. And sometimes—I dont know where they

got the word ‘‘stealing’’; | never stole anything in my life

—and—

Q What did vou tell them that day about that?

c

A Ltold them that sometimes | would dip it out of the

sump pit. That was the—where we could bleed our air into

a little pit that came from the station ‘cause it—in running

oil, you've got to get all the air out or the pump will just sit

there and run with—with air in it and it’ll even burn it up.

And I told him that I never stole any oil; I used it for the

company. business, burning trash and trees, especially—I'd

clear up some right-of-ways and would take the oil in a

drum and—and start the fire to get the trees (p. 12) and

the brush to burn. And I did that on several oceasions, and

that was a practice of—of us doing it everywhere.

App. 14

Q And this is what vou told them?

A Yeah, uh-huh (yes).

Q Did they accuse you of using some of the oil to

burn relatives’ grass?

A Yeah, yeah.

Q And what did vou tell them about that?

A I told them, ‘*No, T wasn’t.”’

Q Did they give you any names in connection with

that?

A They said something about my nephew. No, they

didn’t give no name; just said my nephew,

Q Did they give vou any names about this sand-blast-

ing business you were talking about, about the—

A. No,

Q —about the right-of-way versus sandblasting?

A Uh-huh (no.)

Q What else did they make accusations about?

A Somethink about hay cutting.

Q@ What about hay cutting?

A Never had any hay—I had hay cut but not—not

with company labor, not with contract labor. I paid—paid

for that. Got checks so you—I did—did have some hay cut.

And Mr.—the young boy by the name of Hayes from Dunn,

Louisiana did the cutting and baling.

(p. 138) Q And this is what you told the (inaudible )—

A Uh-huh (ves).

zz

App. 15

Q Okay. What did they say to that?) Did they bring

up any other information about this hay cutting and baling?

A Yeah, they said something about the—-they had

some evidence that the man that was working for me pretty

regular was out there mowing—cutting my hay.

Q Did they mention his name?

A Morgan, | believe is his—his name.

Q And what was your response to that?

A Told them he—he didn’t—he had—wasn't out

there cutting my hay. But found out that—later that he

had got on the mower and had—some of the people there

had—said they had seen him, and I asked him about it and

he said, “Yes, he did

() Oh, he got on the mower without your knowledge ?

A Without my knowledge. That—the morning that

he was out there, | told him not to cut the hay early that

morning, that it was too wet and not to cut it.

Q You discovered this after you were discharged ; is

that correct?

A Yes, sir, after | was discharged.

Q What was he doing out there that day?

\

A Weil, he runs—right there at the same place he—

it's a little five-aere place right beside Interstate-20 and

we have Lact No. 1 right there by it and he runs serapers

(p. 14) from the Laet No. 1 into our relay station where the

manifold is—is. And that’s his job and walk—walk the

lines.

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