Petition for Writ of Certiorari — Eidal International Corp. v. Garcia
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IN THE
Supreme Court of the Gnited States
October Term, 1986
EIDAL INTERNATIONAL CORPORATION,
- PETITIONER
V.
RICHARD GARCIA, ET AL., RESPONDENTS
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Joseph L. Werntz
MOSES, DUNN, BECKLEY,
ESPINOSA & TUTHILL, P.C.
612 First Street, N.W.
P.O. Box 27047
Albuquerque, New Mexico 87125-7047
Telephone: (505) 843-9440
Attorneys for Petitioner
QUESTIONS PRESENTED
1. Whether the appellate court decision in this case is
in direct conflict with DelCostello v. International Brother-
hood of Teamsters, 462 U.S. 151 (1983).
2. Whether the appellate court erred in not applying
the six month statute of limitations adopted in DelCostello
to this case.
3. Whether the labor law policies that persuaded the
Court in DelCostello to adopt a six month statute of limita-
tions apply where the employer has allegedly repudiated the
collective bargaining agreement.
4. Whether the appellate court decision undermines the
strong preference of Congress and this Court for contract
grievance procedures as the preferred method for settling
labor disputes by declining to apply DelCostello.
5. Whether the appellate court decision below is in con-
flict with other circuit court decisions such as McCreedy v.
UAW Local No. 971, 809 F.2d 1232 (6th Cir. 1987), Lacina
v. G-K Trucking, 802 F.2d 1190 (9th Cir. 1986) and Farr v.
H.K. Porter, 727 F.2d 502 5th Cir. 1984) which have applied
DelCostello without hesitation to §301 claims brought by indi-
vidual employees against the employer over a plant closing.
LIST OF PARTIES
Plaintiffs: Richard Garcia, Epifanio Velazquez, Robert
Lee Aragon, Manuel Rito Chavez, Gregory Archibeque,
J.W. Hamilton, Francis J. Bohensky, Dennis Earl Barela,
Robert Gutierrez, Leroy Daniel Zamora, Richard Jaramillo,
Mayo K. Ulibarri, Rudolph Saiz, Adelicio G. Herrera, Ivan
Aragon, Richard D. McGuire, Carlos Benavidez, Ernest
Trujillo, Miguel Delgado, Frank Sanchez, Alex Madrid,
Delbert Davenport, Joe Lopez, Michael Bock, Kenneth
Griego, Harvey West, Linda Poteet Minteer, John G. Rael,
Herman Chavez, Robert Chavez, David Trujillo, Orlando
Quintana, William H. Harrah, Christopher Garcia, Benjamin
Aragon, Joseph N. Lepeska, Trinidad Barela, Sam Blea,
Jimmy Reid, Thomas Wilson, Jr. and Steve Melton.
Defendants: Eidal International Corporation; Jencor
International Corporation; International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO, Local Lodge No. 338; and International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO.
~
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................5.
ss cua c sc hedieesaniasees il
gg 8s rar iii
TABLE OF AUTHORITIES ...................... iv
gy deck ee vd Gece ed vaseuses 1
ee i ec cp tn ech envsveswaeees l
oe gies A) | 1
oS gd 6 ) 2
EN Caen Og 4
Point I - The Appellate Court Improperly
Characterized the Complaint and Thereby
is in Direct Conflict with DelCostello ............ 5
A. The Appellate Court Erroneously
Equated a Breach of Contract Claim
With a Contract Repudiation. .............. 8
B. An Allegation of a Sham Transaction
Reinforces the Applicability of
ae 12
Point II - The Appellate Decision Overturns
Federal Labor Law Policies Reaffirmed in
Se fra ek ea Ww miu ce hk 8s 14
CONCLUSION
APPENDIX
- ill -
TABLE OF AUTHORITIES
CASES: Pages
DelCostello v. International Brotherhood of Teamsters, f
PU NU. gv ccs owssncaceeawes i, 4-7, 10-19
Farr v. H.K. Porter,
pee Le | re i, 17
Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 570-571 (1976). .................. 6, 13
International Union, United Automobile Aerospace
and Agricultural Implement Workers of
America (UAW), AFL-CIO v. Hoosier
Cardinal Corporation, 383 U.S. 696
ne aire Ge As ee hd ee a 14, 16-19
Lacina v. G-K Trucking,
OU Fe RE ee es FD. hn ka cece ecenes i, 17
McCreedy v. UAW Local No. 971,
S00 F 2a imme Cte Cir. 1967). ... 2... wwe. i, 16
Republic Steel v. Maddox,
ee a nade esas 11, 12
Steelworkers v. Warrier and Gulf
Navigation Company, 363 U.S. 574 (1960). ........ 14
United Parcel Service v. Mitchell,
A cca ne nig se cha debe Gee's 5, 6, 14, 16
Vaca v. Sipes
RROD, iv vss 4 oe a os dn 0d.d wed ae ke See 13
STATUTES:
Ne Fs ahs oan deed REE e ESO 1
I 6 ga kd ay a We bee eee 2
29 U.S.C. §160(b) (§$10(b) National Labor
I coo a ee 1, 4-7, 14, 17, 19
29 U.S.C. §173(d) (§203(d) Labor Management
I 582g pee Re ae ht as ig 6 ie 15, 16
29 U.S.C. §185 ($301 Labor Management
Ps tyro 1, 2, 5, 6, 18, 14, 19
IN THE
Supreme Court of the Gnited States
October Term, 1986
NO.
EIDAL INTERNATIONAL CORPORATION,
Petitioner,
v.
RICHARD GARCIA, et al., Respondents.
PETITION FOR WRIT OF CERTIORARI
OPINION BELOW
The opinion of the Tenth Circuit Court of Appeals is
reported at 808 F.2d 717 (10th Cir. 1986).
JURISDICTION
The judgment of the court of appeals was entered on
December 30, 1986. A timely petition for rehearing was filed
by petitioner on January 13, 1987. An order denying the
petition for rehearing was entered on March 12, 1987. The
jurisdiction of this Court rests upon 28 U.S.C. §1254(1).
STATUTES INVOLVED
This case involves §301 of the Labor Management
Relations Act, 29 U.S.C. §185, and §10(b) of the National
Labor Relations Act, 29 U.S.C. §160(b). The statutes are
reproduced in the appendix.
.
STATEMENT OF CASE
1. Plaintiffs are former employees of petitioner Eidal
International Corporation (“Eidal”). Plaintiffs brought suit
in federal district court against Eidal and Jencor Interna-
tional Corporation (“Jencor”) for breach of contract and
against the International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Local Lodge No. 338 and International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO, (“thé union”) for breach of its duty of
fair representation. The suit was filed on January 31, 1984.
Jurisdiction was based on §301 of the Labor Management
Relations Act, 29 U.S.C. §185, and 28 U.S.C. §1337. Plain-
tiffs filed an amended complaint on February 16, 1984, add-
ing five new plaintiffs.
2. Eidal and the union’s local lodge were signatories to a
collective bargaining agreement entered into on August 2,
1981. (Appendix ex. 7; exhibit A to the complaint). Eidal
manufactured heavy duty trailers in Albuquerque, New Mex-
ico. In July 1982 it closed its manufacturing operation and
transferred it to Jencor. All employees were terminated.
Plaintiffs’ complaint against Eidal, Jencor and the union
arises under the bargaining agreement and concerns their
termination.
3. Under the collective bargaining agreement Eidal
reserved the right to relocate or close the business unit pro-
vided notice and an opportunity for discussion was given to
the local lodge (Appendix ex. 7; Article 2, Section 2.1(d) of
Exhibit A).
4. After negotiations with union representatives, Eidal
notified all of its employees in a letter dated July 22, 1982
that it was closing its Albuquerque, New Mexico plant.
(Appendix ex. 7; Exhibit B to the complaint). Eidal termi-
. ?
nated all employees and transferred its manufacturing oper-
ations to Jencor. Eidal advised the employees in the letter
that it had arranged to provide the union with a sum of money
to be distributed on the basis of seniority and to continue
insurance benefits for thirty days.
5. Adelicio Herrera, one of the plaintiffs, filed unfair
labor practice charges against Jencor and the union shortly
after his termination. In his charge against the union (Case
No. 28-CB-2025) plaintiff Herrera claimed the union entered
into an illegal agreement with Jencor on or about July 17,
1982 because the employer had no employees in the bargain-
ing unit. (Appendix ex. 8). In his charge against Jencor (Case
No. 28-CA-7103) plaintiff Herrera claimed Jencor entered
into an illegal agreement with the union and that Jencor dis-
criminatorily failed and refused to hire him because of his
union activities. (Appendix ex. 9). Both claims were predi-
cated on allegations that the arrangement between Eidal
and Jencor was a sham. The agreement between Jencor and
the union was nullified in settlement agreements signed by
Herrera, the union and Jencor (Appendix exs. 10 and 11),
but the National Labor Relations Board found no merit in
the other claims of plaintiff Herrera. (Appendix exs. 12
and 13).
6. Eighteen (18) months after their grievance arose,
Plaintiffs filed suit. Plaintiffs alleged in the complaint that
their termination by Eidal was a breach of the collective bar-
gaining agreement. Plaintiffs further alleged that Jencor was
either an alter ego of Eidal or a successor which was bound
by the collective bargaining agreement. Plaintiffs also alleged
that their discharge was wrongful.
7. Plaintiffs allege that the union condoned, acquiesced
and conspired in Eidal’s breach of the collective bargaining
agreement and breached its duty of fair representation by
failing to challenge the propriety of Eidal’s actions, to keep
its
its members informed about those actions, to bargain in good
faith with Eidal and by entering into an illegal pre-hire con-
tract with Jencor.
8. Eidal and Jencor filed timely motions to dismiss in
the district court action. They argued that plaintiffs’ com-
plaint was time-barred under the six month statute of limi-
tations adopted in DelCostello. The union timely answered
the complaint and later filed a motion to dismiss the com-
plaint as time-barred under DelCostello.
9. The district court issued a memorandum opinion and
entered an order on September 4, 1984 granting the three
motions to dismiss. The district court held that 29 U.S.C.
§160(b) and DelCostello barred plaintiffs’ complaint. The dis-
trict court declined to exercise jurisdiction over the remain-
ing pendent state claims.
10. Plaintiffs filed a timely notice of appeal. The court
of appeals entered its decision on December 36, 1986 which
reversed the district court decision and remanded the case
for further proceedings. The court of appeals concluded that
the holding of DelCostello aid not extend to cases in which
an employer has repudiate.l all of its obligations under a bar
gaining agreement, including the duty to arbitrate.
ARGUMENT
The characterization of the present case by the court
_of appeals is antithetical to the decision issued by this Court
in DelCostello v. International Brotherhood of Teamsters,
462 U.S. 151 (1983). The appellate court improperly equat-
ed a breach of contract claim with contract repudiation. Their
decision, if left intact, effectively overrules DelCostello.
The appellate decision ignores the long standing feder-
al labor law goal of rapid resolution of disputes within the
=
collective bargaining framework. Instead, the decision ex-
tends the limbo period in which labor disputes remain unre- —
solved and undermines the contractual grievance process
favored by Congress and the courts. The final result is to
prolong the very litigation which DelCostello brought with-
in the six months limitation period of §10(b) of National Labor
Relations Act, 29 U.S.C. §160(b). Petitioner Eidal requests
that the Court accept this petition and clearly define the
parameters of DelCostello when litigation is initiated by
employees against their employer and union.
POINT I
THE APPELLATE COURT IMPROPERLY
CHARACTERIZED THE COMPLAINT AND
THEREBY IS IN DIRECT CONFLICT WITH
DELCOSTELLO.
In DelCostello, the Court was called upon to determine
what statute of limitations should apply to actions brought
under §301 of the Labor Management Relations Act, 29
U.S.C. §185, where an employee sues his employer for a
breach of the collective bargaining agreement and also his
union for breaching its duty of fair representation by mis-
handling his grievance. The Court held that the six months
limitations period of §10(b) of the National Labor Relations
Act was the applicable statute of limitations governing the
suit, both against the employer and the union.
In analyzing the cases, the Court found that the indis-
pensable predicate for an employee §301 claim against the
employer was proof that the union had breached its duty of
fair representation. Often referred to as a hybrid action, Jus-
tice Stewart in United Parcel Service v. Mitchell, 451 U.S.
56 (1981) defined the nature of such an action: “To prevail
against either the company or the union. . . [employee-
athe
plaintiffs] must not only show that their discharge was con-
trary to the contract, but must also carry the burden of
demonstrating breach of duty by the union.” Mitchell, 451
U.S. at 67, quoting Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 570-571 (1976).
No case before DelCostello had provided the Court with
a suitable guide fromy. ~*~ borrow a statute of limitations.
The Court recogni7z~ ~ ==: aims raised in DelCostello
amounted to a direct cuauenge to the private settlement of
disputes under the bargaining agreement. DelCostello, 462
U.S. at 165. The Court also perceived that competing inter-
ests were at stake; namely a national interest in stable bar-
gaining relationships and finality of private settlements, and
an employee’s interest in challenging wrongful conduct on —
the part of his employer and union. Jd. at 171. To accom-
modate a balancing of these interests in the context of §301/
fair representation litigation, the Court settled on the six
months limitations period of §10(b).
In the present case, the court of appeals refused to char-
a:terize the action as a hybrid, despite the presence of claims
by individual employees against both the employer for breach
of the collective bargaining agreement and against the union
for breach of its duty of fair representation. Instead, the
appellate court found the case more analogous to a straight-
forward breach of contract action. It declined to apply the
DelCostello six month limitations period, opting instead to
apply an appropriate state statute of limitations period. The
appellate court reversed the district court’s order granting
defendants’ motions to dismiss and remanded the case for
further proceedings.
_ The appellate court’s decision is based on the distinc-
tion that Eidal repudiated the entire bargaining agreement,
including its duty to arbitrate. (Appendix ex. 1 at pages 2a
and 7a). The appellate court reasoned that an employer’s total
repudiation of a bargaining agreement is a unilateral act
>
which does not require proof that the union has also breached
its duty of fair representation.
Initially, it should be noted that the complaint did not
allege that Eidal repudiated the contract: Rather, the com-
plaint states that the plant closing, plaintiffs’ termination,
and the transfer of manufacturing operations was a breach
of contract by Eidal and that the union condoned, acquiesced
and conspired in the breach. The complaint, moreover, does
not allege that Eidal refused to participate in the contrac-
tually allowed grievance procedures under the bargaining
agreement or that plaintiffs tried to invoke the contractual
grievance procedures. In every count of the complaint,
except for that which alleges that the union breached its
duty of fair répresentation, both the employer and the union
are sought to be held responsible for plaintiffs’ terminations.
On this basis alone, the appellate court was remiss in not
affirming the district court which had held that the com-
plaint was time-barred under DelCostello and §10(b).
The court of appeals relied on two allegations in the com-
plaint to support its finding that repudiation was well pled
(Appendix ex. 1 at pages 8a and 9a). The appellate court first
pointed to the July 1982 letter attached to the complaint as
Exhibit B which announced to all employees that Eidal was
closing its plant and transferring its manufacturing opera-
tions. The court of appeals inferred from this letter that Eidal
effectively was announcing an end to contractual relations.
The court apparently concluded that the letter could support
an inference of repudiation.
The second allegation cited by the appellate court was
that the transfer of Eidal’s manufacturing operations to
Jencor was a sham and that the two companies were actu-
ally the same employer. In the appellate court’s view this
allegation, combined with the inference drawn from the July
1982 letter, described with sufficient particularity a sham
transaction that constitutes a repudiation.
. ¥.
A. THE APPELLATE COURT ERRONEOUSLY
EQUATED A BREACH OF CONTRACT CLAIM
WITH CONTRACT REPUDIATION.
The bargaining agreement gave Eidal the express right
to close the plant, free from a duty to submit its decision to
arbitration. The signatories to the bargaining agreement,
Eidal and the local union lodge, agreed that Eidal retained
the right during the term of the agreement to unilaterally
make a decision to close its plant. Section 2.1 of the agree-
ment provided: '
2.1 It is mutually recognized and agreed by the compa-
ny and the union that, except as abridged, delegated,
granted or modified specifically by this Agreement or
any supplementary agreements that may be hereinaf-
ter made, all of the rights, powers, and authority the
company had prior to the signing of this or any preced-
ing agreement are retained by the company, and remain
exclusively and without limitation with the rights of
management. The union recognizes that the company
has and retains the exclusive right to manage its busi-
ness and all its actions and concerns except as express-
ly limited in this Agreement. The exercise of these
rights, powers and authority retained by the company
are not subject to the grievance procedure except as
hereinafter specifically provided or as might be express-
ly limited by some specific provision elsewhere in this
Agreement.
Without limiting the generality and purpose of the fore-
going provision, this includes but is not limited to:
* * *
(d) The location of the business, including the estab-
lishment of new business units, and the relocation or
closing of the present business unit, provided that notice
is first given and opportunity for discussion is provided
to the union upon proposal to relocate or close the pres-
ent operations.
<
(Appendix ex. 7; Article II, Section 2.1 of Exhibit A). Eidal
had the authority under the bargaining agreement to close
the plant, but it was required to give notice and an oppor-
tunity for discussion to the union about the proposal to close
the plant.
The July 1982 letter alone cannot serve as an inference
of repudiation for three reasons. First, Eidal had the right
under the bargaining agreement to close its plant. The deci-
sion to close and its implementation was contractually per-
mitted. Eidal was required though to give notice to the union.
Section 2.1(d) of the bargaining agreement directed Eidal
to give notice only to the union. Plaintiffs can only complain
that the union did not have notice or a chance for discus-
sion. Eidal had no duty to give every employee notice and
an opportunity for discussion. Any failure on the part of Eidal
to give notice to every employee does not state a claim for
breach of the bargaining agreement or, more specifically,
allege a repudiation of the bargaining agreement.
Second, the complaint does not allege that the union was
unaware of Eidal’s decison to close the plant or that the union
did not have an opportunity for discussion on the decision
to close the plant. To the contrary, in their claim against
the union, the plaintiffs alleged that the union breached its
duty of fair representation 1) by failing to bargain in good
faith with Eidal regarding the sale of the bargaining unit
functions to Jencor; 2) by failing to vigorously assert and
protect the rights of the employees in connection with the
sale; and 3) by conspiring with Eidal and Jencor to cause
Plaintiffs to lose their employment. (Appendix ex. 7; Count
II, paragraph 5 (a, b, i)). Plaintiffs also akeged in the com-
plaint that the layoffs leading up to the July 22, 1982 letter
and their terminations were part of a preconceived scheme
in which the union condoned, acquiesced and conspired.
(Appendix ex. 7; Count Ili, paragraph 3; Count IV, para-
graph 2).
- -
Furthermore, Plaintiffs alleged in their complaint that
the union had signed an illegal pre-hire agreement with
Jencor that the National Labor Relations Board later nulli-
fied. (Appendix ex. 7; Count II, paragraph 5(h)). The date
of the alleged illegal agreement preceded Eidal’s July 22,
1982 termination letter. (Appendix exs. 8-11). Plaintiffs by
their own complaint have alleged that the union knew of the
closing, conceded to it and was trying to bind the next em-
ployer to a new collective bargaining agreement.
The third and perhaps most important reason why the
July 1982 letter does not support an inference of repudia-
tion is that a breach of a contract claim is not the same as a
repudiation of the contract. Eidal by exercising a right it
had under the bargaining agreement cannot be deemed to
have repudiated the agreement. At best plaintiffs can only
complain that Eidal exercised its contractual right to close
the plant improperly by not giving the union notice and a
chance for discussion. It is unreasonable to conclude, as the
appellate court did, that by closing the plant pursuant to
its contractual right Eidal also repudiated the agreement.
Otherwise, DelCostello would never apply to a plant closing
where an allegation of repudiation is made.
The July 1982 letter explains the arrangement that Eidal
had made with the union to distribute a sum of money to all
employees with tenure of more than three years and to
continue insurance benefits for the next thirty days. The pay-
ment of money through the union and continuation of insur-
ance benefits are inconsistent with an inference of repudiation.
The reasonable inference drawn from those statements in
the letter is that discussions had taken place between Eidal
and the union.
Plaintiffs purposely and necessarily linked their claim
against Eidal to their claim against the union. Eidal was not
-10-
a
obligated under the bargaining agreement to give each indi-
vidual employee notice and an opportunity for discussion
regarding the decision to close the plant. Eidal was only obli-
gated to inform the union. The complaint alleges and record
reflects that the union knew about the decision to close the
plant. The claim pled against Eidal necessarily depends upon
proof concerning the nature of the union’s discharge of its
duty of representation.
Under DelCostello, Plaintiffs had six months to bring
suit and failed to do so. The district court reviewed the com-
plaint and could not draw any reasonable inferences which
would defeat the motions to dismiss. It properly ruled that
the six months limitations period of DelCostello applied and
dismissed Plaintiffs’ complaint as time-barred.
The appellate court struggled to avoid this result. It
excused the union complicity alleged by plaintiffs as an expla-
nation why plaintiffs sued individually. That reasoning does
not explain why DelCostello is inapplicable.
At best union complicity excused plaintiffs from resort-
ing to the contractual grievance process. Any other expla-
nation ignores the relationship between the union and its
members. Members must afford the union the opportunity
to act on their behalf. Repwhblic Steel v. Maddox, 379 U.S.
650 (1965). In the present case the bargaining agreement
appointed the union as plaintiffs’ representative and estab-
lished a uniform and exclusive method for orderly settle-
ment of grievances. Plaintiffs were obligated to follow the
contractual grievance process, but filed a lawsuit instead.
The appellate court’s refusal to characterize the pres-
ent case as a hybrid action is unsound. It is a characteriza-
tion that serves only to avoid the strictures of DelCostello
and substantially extend the time within which to resolve
7.
disputes in derogation of a long standing labor policy to the
contrary.
B. AN ALLEGATION OF A SHAM TRANSACTION
REINFORCES THE APPLICABILITY OF
DELCOSTELLO.
The appellate court was particularly intrigued with
the notion of a sham transaction. (Appendix ex. 1 at page
7a). Plaintiffs alleged in their complaint that Eidal and Jencor
were alter egos and in essence the same employer. There-
fore, Jencor remained bound by the bargaining agreement.
(Appendix ex 7; Count I, paragraph 7). Alternatively, plain-
tiffs allege Jencor was a successor to Eidal and bound by
the bargaining agreement. (Appendix ex. 7; Count II, para-
graph 9). Eidal does not concede that either allegation is
true, but will assume they are for purposes of this argument.
Plaintiffs’ contention under either scenario is that Eidal
(now called Jencor) remained subject to the collective bar-
gaining agreement and that their termination, loss of bene-
fits, and failure to be rehired was in breach of the bargaining
agreement. (Appendix ex 7; Count I, paragraph 8). In plain-
tiffs’ eyes, the transaction between Ejidal and Jencor was a
sham that was designed to reduce overhead at the expense
of plaintiffs. (Appendix ex 7; Count I, paragraph 6).
Even if the allegations of sham transaction constitute
a breach of contract and a repudiation, it is not a reason to
avoid DelCostello. Under either the alter ego or successor
scenario, plaintiffs were still required to afford the union
the opportunity to act on their behalf and to attempt to sub-
mit their dispute to the grievance and arbitration procedure
in the bargaining agreement. Republic Steel v. Maddox, 379
U.S. 650 (1965). As pointed out earlier, plaintiffs do not allege
that they tried to invoke the grievance procedures or that
Eidal (now called Jencor) refused to grieve. Instead, plain-
x
tiffs contend that the union either failed to press or only
perfunctorily pressed their claims, and attempted to enter
into a new bargaining agreement with Jencor. (Appendix
ex 7; Count II, paragraph 5).
In Vaca v. Sipes, 386 U.S. 171 (1967) the Court found
that conduct of an employer which amounts to a repudia-
tion of exclusive contractual remedies allows employees to
seek judicial review without pursuing the contractual pro-
cedures. Jd. at 185. Likewise, an employee may seek judi-
cial review directly if the union wrongfully refuses to process
the grievance or improperly processes a grievance. Id.; Hines
v. Anchor Motor Freight, Inc. 424 U.S. 554 (1976). At best
the allegations of the complaint in the present case excused
plaintiffs from exhausting the exclusive contractual griev-
ance and arbitration remedies, and permitted them to seek
judicial enforcement of their contractual rights.
Under either plaintiffs’ alter ego or successor scenar-
io, an established and continuing relationship between man-
agement and labor was still present. The union continued
to represent those employees still working for Eidal (now
Jencor) under the bargaining agreement. The notion of repu-
diation in the present case does not destroy the balancing
of interests at stake among the parties; that is, EKidal’s and
the union’s interest in a uniform, final and rapid resolution
of the dispute versus the fair opportunity for plaintiffs to
vindicate their rights under §301 and the fair representa-
tion doctrines. The allegations of a sham transaction as pled
do not excuse plaintiffs from the six month limitations period
of DelCostello, but rather reinforce the characterization of
this action as a hybrid within the parameters of DelCostello.
This is the point which the appellate court misapprehended
and which has turned the holding of DelCostello on its head.
Eidal respectfully requests the Court to accept this Petition
and set straight the conflict created by the appellate court
decision.
- 13 -
POINT II
THE APPELLATE DECISION OVERTURNS
FEDERAL LABOR LAW POLICIES REAFFIRMED
IN DELCOSTELLO.
The rapid resolution of labor disputes has long been a
leading federal policy in the area of labor law. The policy is
most clearly stated in Section 10(b) of the National Labor
Relations Act, where Congress has adopted a six month limi-
tations period for unfair labor practice proceedings. The poli-
cy promotes the national interests in stable bargaining
relationships and finality of private settlements. It also
underseores the importance attributed to the private griev-
ance procedures under a collective bargaining agreement
which are at the very heart of the system of industrial self-
government. Steelworkers v. Warrier and Gulf Navigation
Company, 363 U.S. 574 (1960).
The grievance procedures in a bargaining agreement
are designed to avoid disintegration of the relationship
between an employer and union by establishing an orderly
means of handling disputes which arise in the workplace.
Not only are the procedures important, but so is the time it
takes to invoke the procedures and complete the process.
Congress and this Court have recognized that it is critical
that disputes be resolved expeditiously and not left suspend-
ed in limbo for long periods. 29 U.S.C. §160(b); United Par-
cel Service, Inc. v. Mitchell, 451 U.S. 56 (1981).
The policy of rapid dispute resolution is not restricted to
§10(b) proceedings. It extends to §301 actions as well. E.g.,
DelCostello, supra; Mitchell, supra; International Union,
United Automobile Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO v. Hoosier Cardi-
nal Corporation, 383 U.S. 696 (1966). Congress has express-
ly approved contract grievance procedures as a preferred
~M.
method for settling dneuten. §203(d) Labor ~epeananete
Relations Act, 29 U.S.C. §1738(d).
The appellate decision in the present case is inconsis-
tent with the goals of speed and finality in the resolution of
labor disputes. In its decision the court of appeals limited
these goals to situations where there is a continuing working
relationship between management and labor (Appendix ex. 1
at pages 9a and 10a). It decided the goals did not apply where
an employer repudiates the contract and closes his busi-
ness. Id.
As discussed in Point I, supra, the soundness of the ap-
pellate court’s conclusion that an allegation of repudiation was
properly raised is highly suspect. Its reasoning that a well
pled allegation of contract repudiation makes DelCostello in-
apposite is equally suspect. Moreover, the allegations of the
complaint repeatedly state that a continuing working rela-
tionship remained between Ejidal (now Jencor) and the union.
Assuming that plaintiffs stated a claim of contract repu-
diation and that at Eidal’s instigation there was a total break-
down in contractual relations between Ejidal and the union,
important questions remain as to whether the federal labor
law policies discussed in DelCostello still apply. The practi-
calities of labor relations require rapid and final resolutions
of disputes for both sides. An employer needs to know that
he can make a business decision under a bargaining agree-
ment to relocate or close a plant and not be subject to liti-
gation years later on grounds that the decision was a “de
facto” repudiation of the contract. The union and its employ-
ees also have an interest in seeking immediate redress from
a relocation or closing which is deemed to be in violation of
the bargaining agreement. If there is not a prompt resolu-
tion of disputes in these circumstances, both the employer
and the union remain subject to the vagaries of litigation
-15-
from disgruntled employees who object to the way they were
treated as a result of the decision to close.
The appellate decision has far reaching consequences
because it overturns existing labor policies and goals adopt-
ed by Congress and this Court which promote a rapid reso-
lution of disputes. 29 U.S.C. §173(d); e.g., DelCostello,
Mitchell and Hoosier, supra. The decision is detrimental to
employer, employee and union alike, who all have an obvi-
ous interest in immediate redress from disputes arising when
a plant is closed.
These policy factors have been addressed by other cir-
cuit courts in a plant closing situation, and the decisions
reached are in conflict with the position of the appellate court
below. In McCreedy v. UAW Local No. 971, 809 F.2d 1232
(6th Cir. 1987), the employees brought an action claiming
that the employer violated the bargaining agreement by not
affording them transfer rights when it closed its plant. The
employees also sued the union for breach of the duty of fair
representation. The Sixth Circuit held that the plaintiffs’
action was untimely under DelCostello in that they knew
or should have known, more than six months before filing
their action, that the employer was not going to honor cer-
tain provisions of the collective bargaining agreement, and
that the union was not going to seek arbitration. McCreedy,
supra at 1236-37.
Furthermore, the McCreedy court specifically found
that the employer failed to abide by the grievance proce-
dures written into the collective bargaining agreement.
McCreedy, supra at 1237. The employer in McCreedy, in
so acting, did what the court below in the instant case said
Eidal allegedly did — refused to honor the grievance pro-
cedure by “repudiating” the contract. Nevertheless, the
McCreedy court still required the union to bring its action
- 16-
against the employer to compel arbitration within the six-
month time period established by DelCostello.
Similarly, in Lacina v. G-K Trucking, 802 F.2d 1190
(9th Cir. 1986) (decided on the very same day as the instant
case), the court of appeals for the Ninth Circuit ruled that
the employees knew, or should have known, prior to six
months before they filed their action, that no union action
regarding the employer’s closure of its facility was forth-
coming. Jd. at 1192. Accordingly, the court applied the six-
month statute of limitations mandated by DelCostello to bar
the plaintiffs’ action. There, as here, the employees were
or should be barred by the action or inaction of their union.
In Farr v. H.K. Porter Co., 727 F.2d 502 (5th Cir. 1984),
the plaintiff-employees claimed that their former employer's
closure and subsequent sale of its facilities constituted a
breach of the collective bargaining agreement, and that the
union’s failure to protect their rights during the events sur-
rounding the closure and sale of the plant constituted a
breach of the duty of fair representation. Jd. at 502-503.
The Court concluded that §10(b)’s six-month statute of lim-
itations applied to those plaintiffs’ claims and found that
Hoosier was inapplicable. “Unlike the present case, Hoosier
did not involve any agreement to submit disputes to arbi-
tration, and the suit was brought by the union itself rather
than the individual employee.” /d. at p. 505, citing DelCostello
462 U.S. at 162.
While the court of appeals in the present case claimed
that Porter was inapposite, the fact situations in both cases
are strikingly similar. The union here had full knowledge
of, and participated intimately in, the proceedings which
resulted in Eidal’s decision to close its plant — as is clearly
indicated in the complaint. Accordingly, the appellate opin-
ion below is at odds with the Porter case.
-17-
aeteeenannnemi ie
From the allegations of the complaint, it is clear that
plaintiffs knew, or should have known, on July 22, 1982 or
shortly thereafter of their alleged grievance against Eidal
and the union. DelCostello recognized the need for an
aggrieved employee to have a satisfactory opportunity to
vindicate his rights, but shunned a limitations period which
prolonged the resolution of disputes. This Court found that
the six month limitations period properly balanced these
interests. DelCostello adopted a single limitations period of
six months for fair representation suits where an employee
sues both his employer and his union. Plaintiffs did not file
suit until eighteen months after their termination.
The need for a quick resolution of grievances raised in
lawsuits filed by individual employees against their union
and their employer is accentuated when the dispute arises
out of a plant closing. It therefore is more appropriate to
borrow the six month limitations period adopted in Del-
Costello rather than a state statute of limitations as plain-
tiffs urge. This Court said in DelCostello that “when a rule
from elsewhere in federal law clearly provides a closer anal-
ogy than available state statutes, and when the federal pol-
icies at stake and the practicalities of litigation make that
rule a significantly more appropriate vehicle for interstitial
lawmaking, we have not hesitated to turn away from state
law.” DelCostello, 462 U.S. at 172.
Plaintiffs have relied heavily on Hoosier, supra. The
appellate court was persuaded to apply Hoosier, although
the district court held that DelCostello controlled. It must
be remembered that in Hoosier it was the union that brought
suit against the employer for breach of contract, and not
individual employees. There was no claim asserted against
the union by individual employees. There also was no agree-
ment between the employer and the union to submit dis-
putes to arbitration.
In the present case, as in DelCostello, individual employ-
ees have brought claims against both the employer and the
union. The dispute in this case is over a plant closing. There
is a bargaining agreement which contains a provision giv-
ing the employer the right to close the plant. The agree-
ment also contains a grievance procedure for disputes. The
grievance procedure was applicable to a dispute over wheth-
er the union had notice and input into the decision to close.
(Appendix ex. 1 at page 6a). The factual similarities between
the present case and DelCostello sufficiently implicate the
consensual process that federal labor law is designed to pro-
mote and which DelCostello sought to protect. By analogiz-
ing this case to Hoosier, the appellate court ran afoul of the
national interests in speed and finality in dispute resolution
and improperly extended the time to resolve the present
dispute.
The Supreme Court has consistently taken positions
which promote the national labor policy of rapid resolution
of disputes. Even in Hoosier the Court eschewed a longer
state statute of limitations in favor of a shorter one, in part
because of the federal policy favoring the relatively rapid
resolution of labor disputes. Hoosier, 383 U.S. at 707. The
vitality of Hoosier in cases where employees sue their em-
ployer and their union is in serious question. This Court
indicated in DelCostello that even if that action were con-
sidered as arising solely under §301, the objections to use of
state law and the availability of a well-suited limitations peri-
od in §10(b) would call for application of the latter rule.
DelCostello, 462 U.S. at 158, n. 12. The court of appeals in
the present case revitalized Hoosier at the expense of uni-
formity, finality and the rapid resolution of labor disputes,
which are the underpinnings of DelCostello. The Court
should accept this appeal and hear full argument on why
the characterization given this case by the appellate court
should be reversed.
— =
CONCLUSION
For the foregoing reasons, Petitioner prays for certio-
rari to be granted.
MOSES, DUNN, BECKLEY,
ESPINOSA & TUTHILL, P.C.
Joseph L. Werntz
Attorneys for Petitioner
612 First Street, N.W.
P.O. Box 27047
Albuquerque, New Mexico 87125-7047
Telephone: (505) 843-9440
¢
- 20 -
APPENDIX
EXHIBIT 1
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RICHARD GARCIA, et al.,
Plaintiffs-Appellants,
V.
EIDAL INTERNATIONAL
CORPORATION, a foreign
corporation; JENCOR
INTERNATIONAL CORPORATION,
a foreign corporation; and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS,
FORGERS AND HELPERS,
AFL-CIO, LOCAL LODGE NO. 338,
a labor organization, and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS,
FORGERS AND HELPERS,
AFL-CIO, labor organization,
Defendants-Appellees.
No. 84-2255
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. Civ. 84-0142C)
Filed December 30, 1986
Douglas G. Voegler of Marchiondo & Berry, P.A., Albuquer-
que, New Mexico (H. Richard Blackhurst of Albuquerque,
New Mexico, with him on the brief), for Plaintiffs-Appellants.
- la-
Joseph L. Werntz (Terry D. Farmer with him on the brief)
of Moses, Dunn, Beckley, Espinosa & Tuthill, Albuquerque,
New Mexico, for Defendant-Appellee Eidal International
Corporation.
Thomas H. Marshall of Blake & Uhlig P.A., Kansas City,
Missouri (Gerlad R. Bloomfield of Kool, Kool, Bloomfield &
Hollis, P.A., Albuquerque, New Mexico; and Robert L.
Dameron of Blake & Uhlig P.A., Kansas City, Kansas, on
the brief), for the Union Defendants-Appellees
Before MCKAY, SEYMOUR, and MOORE, Circuit Judges.
SEYMOUR, Circuit Judge.
A number of former employees of Eidal International
Corporation brought suit against Eidal, Jencor Internation-
al Corporation, and the International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers, and
Helpers, AFL-CIO, and its affiliate, Local Lodge No. 38
(the union). The district court granted defendants’ motion
to dismiss on the ground that the suit was time barred under
DelCostello v. International Brotherhood of Teamsters, 462
U.S. 151 (1983). We reverse and remand, concluding that
the holding of DelCostello does not extend to cases in which
an employer has repudiated all of its obligations under a
bargaining agreement, including the duty to arbitrate.
I.
In considering a motion to dismiss for failure to state a
claim, the pleadings should be liberally construed, all well-
pleaded factual allegations must be accepted as true, and
all reasonable inferences must be drawn in favor of the
plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
- 2a -
1984). So construed, the amended complaint in this case
alleges the following fi.cts.
The terms and conditions of plaintiffs’ employment with
Eidal were governed by a collective bargaining agreement
between Ejidal and the union. In July 1982, one year after
the bargaining agreement was signed and two years before
it was to expire, Eidal notified its employees that the busi-
ness had been sold to Jencor. A letter from Eidal’s chair-
man announced the sale, discharged all of the company’s
employees, mentioned certain termination benefits, and
referred the workers to Jencor for possible rehiring. Eidal
did not transfer the bargaining agreement to Jencor, which
installed a new work force on less favorable terms. Only a
few former Eidal employees were rehired.
Eighteen months after the sale was announced, plain-
tiffs filed this action against Eidal, Jencor, and the Union
under section 301 of the National Labor Management Rela-
tions Act (NLMRA), 29 U S.C. §185 (1982). Plaintiffs con-
tended that the sale was a sham, that Jencor was merely
Eidal’s alter ego, and that Eidal had repudiated the collec-
tive bargaining agreement by acting for the sole purpose of
evading its contractual obligations. Plaintiffs further assert-
ed that Eidal wrongfully discharged them in connection with
the transaction. Plaintiffs also alleged that the union had
violated its duty of fair representation because it failed to
challenge the propriety of the transaction, failed to inform
its members about the sale, and signed a pre-hire agree-
ment with Jencor that the National Labor Relations Board
(NLRB) later nullified. The complaint charges that Eidal
acted unilaterally in severing all relations under the bargain-
ing agreement, although it also alleges that the union acqui-
esced. Plaintiffs also asserted several violations of state law.
The district court granted defendants’ motion to dismiss
the action as time barred. The court characterized plaintiffs’
>
lawsuit as a hybrid action within the meaning of DelCostello,
declined to exercise its jurisdiction over the pendent state
law claims, and dismissed the complaint. Plaintiffs appeal
contending that because Eidal wholly repudiated the col-
lective bargaining agreement, including its duty to arbitrate,
the suit is governed by the state limitations period for breach
of contract, and that DelCostello is inapposite.
Il.
No federal statute of‘limitations is specifically provided
for section 301 actions. DelCostello, 462 U.S. 151, estab-
lished that the six-month statute of limitations contained in
section 10(b) of the National Labor Relations Act, 29 U.S.C.
§160(b) (1982) (NLRA), governs a hybrid action, i.e., an
action in which an employee may sue both his employer and
the union because the union has undermined the grievance
and arbitration process by violating its duty to fairly repre-
sent the employee. The timeliness of plaintiffs’ claims against
Eidal turns on whether the company’s alleged repudiation
of the bargaining agreement makes the case more closely
analogous to an action on a contract than to a typical hybrid
claim governed by DelCostello.
A.
In order to determine the proper characterization of this
action, it is helpful to review the line of cases culminating
in DelCostello. The seminal case of UAW v. Hoosier Cardi-
nal Corp., 383 U.S. 696 (1966), involved a section 301 suit
for breach of a collective bargaining agreement by an employ-
er. The claim in Hoosier resembled a straightforward action
on a contract; there was no requirement to arbitrate and
the union sued directly on the bargaining agreement. The
Court concluded that under these circumstances, the time-
liness of the suit was to be governed by applying the most
appropriate state statute of limitations. In deciding not to
apply a uniform federal rule of timeliness to such actions,
- 4a -
the Court emphasized that national uniformity is relatively
unimportant when an issue does not implicate “those con-
sensual processes that federal labor law is chiefly designed
to promote — the formation of the collective bargaining
agreement and the private settlement of disputes under it.”
Id. at 702. Hoosier reserved the question whether differ-
ent types of section 301 actions might necessitate different
rules of timeliness. See id. at 705 n.7.
Subsequent cases wrestled with various issues involv-
ing section 301 suits. The Court allowed individual employ-
ees as well as unions to sue their employers for breach of a
bargaining agreement, Smith v. Evening News Association,
371 U.S. 195, 200 (1962), but required them to exhaust con-
tractually mandated grievance and arbitration procedures,
Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965),
and to abide by finality provisions contained in the agree-
ment, see W. R. Grace & Co. v. Local Union 759, Interna-
tional Union of Rubber Workers, 461 U.S. 757, 764 (1983).
If, however, a union undermined the grievance and arbi-
tration process by violating its duty of fair representation,
an employee could sue both employer and union irrespec-
tive of the finality or outcome of those proceedings. Hines
v. Anchor Motor Freight, Inc., 424 U.S. 554, 567-71 (1976);
Vaca v. Sipes, 386 U.S. 171, 185-86 (1967); see also Del-
Costello, 462 U.S. at 164. These so-called hybrid actions dif-
fer significantly from cases like Hoosier. In a hybrid action
an employee suing his employer for breach of a bargaining
agreement can advance that claim only if he also prevails
on a decidedly non-contractual claim against his union. See
United Parcel Service, Inc v. Mitchell, 451 U.S. 56, 62-63
(1981). The two claims are inextricably linked, and are a cre-
ation of federal labor law that lacks any close analogy in state
law. Unlike Hoosier, such hybrid actions directly challenge
the private resolution of disputes under the grievance and
arbitration procedures provided for in most bargaining agree-
ments. See DelCostello, 461 U.S. at 165.
- fe -
As explained in DelCostello, an appropriate limitations
period for hybrid cases must be long enough to allow employ-
ees to vindicate their rights effectively, yet short enough
to ensure “the relatively rapid resolution of labor disputes
favored by federal law.” See 462 U.S. at 168. Because of
the unique nature of hybrid cases, the usual practice of seek-
ing analogies in state law proved unsuccessful in fulfilling
these federal objectives.’ Recognizing that a uniform stan-
dard was needed, the Court in DelCostello responded by
adopting the six-month statute of limitations contained in
section 10(b) of the NLRA. Id. at 169-72; see generally Jones
v. Consolidated Freightways, Corp., T76 F.2d 1458, 1462
(10th Cir. 1985). In so doing, however, the Court reaffirmed
that “resort to state law remains the norm for borrowing of
limitations periods.” DelCostello, 461 U.S. at 171.
B.
This case is superficially similar to a hybrid action. Plain-
tiffs are suing both their employer and their union. Addi-
tionally, the bargaining agreement contains a comprehensive
grievance and arbitration clause, which applies to all dis-
putes “as to the meaning or application of any provisions”
of the agreement. See rec., vol. I, at 22. Considering that
the signatories evinced no intention to exclude controver-
sies arising from transactions such as the one involved in
this action, arbitration would ordinarily be appropriate. See
AT&T Technologies, Inc. v. Communication Workers, 106
S. Ct. 1415, 1418 (1986).
‘In United Parcel Service Inc v. Mitchell 451 U.S. 56 (1981), the Court applied
a 90-day state limitations period for vacation of a commercial arbitration award
to an employee’s lawsuit against his employer. In DelCostello, the Court
noted that this choice would resolve labor disputes quickly, but at the cost
of denying relatively unsophisticated employees adequate time in which to
sue. See 461 U.S. at 165-66. The Court added that an employee’s claim against
his union in no way resembled an action to vacate an arbitration award. See
id. at 166-67.
- 6a -
iii icra
In one crucial respect, however, this case is distinguish-
able from a typical hybrid action, and more analogous to a
contract action, as in Hoosier. Plaintiffs allege that Eidal.
repudiated the grievance and arbitration process as part of
its unilateral effort to evade an undesirable bargaining agree-
ment. The notion of a sham transaction, in the sense of being
both covert and in bad faith, implies a determination to repu-
diate the contract and thereby avoid arbitration.” This con-
tract claim in no way depends upon proof concerning “the
nature of the union’s discharge of its duty of representa-
tion.” See Gould, Inc. v. Adams, 105 8. Ct. 806, 808 (White,
J., joined by Brennan and Powell, JJ., dissenting from denial
of certiorari). Because Eidal allegedly acted unilaterally, its
potential liability to these plaintiffs is properly viewed as
distinct from that of the union. Cf. Mitchell, 451 U.S. at 62-63.
A defendant employer should not be permitted to characterize
as a “hybrid action” what is essentially a contractual claim
simply because the union has acquiesced in the breach. In
the present case, any union complicity does no more than
explain why plaintiffs have sued individually. In sum, if the
complaint adequately states a claim of contract repudiation,
then plaintiffs’ section 301 claim against Eidal and Jencor
may be properly analogized to an action on a contract, and
the appropriate state limitations period should be applied.
{.
In Vaca, 386 U.S. at 185, the Court made clear that
individual employees may sue their employer directly for
2 An employer’s repudiation of the grievance and arbitration process can also
constitute an unfair labor practice within the jurisdiction of the NLRB. Such
a violation, however, does not make the employer’s conduct any less a breach
of a collective bargaining agreement, which is actionable under §301. See
United Steelworkers v. New Park Mining, 273 F.2d 352, 357-58: see also
Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 101 n.9 (1962). In this
case, moreover, Eidal’s repudiation cannot be separated from the alleged
substantive breach.
>
breach of a bargaining agreement if the employer has effec-
tively repudiated the grievance and arbitration process.
“An obvious situation in which the employee should not
be limited to the exclusive remedial procedures estab-
lished by the contract occurs when the conduct of the
employer amounts to a repudiation of those contractu-
al procedures. Cf. Drake Bakeries, Inc. v. Local 50, Am.
Bakery, etc., Workers, 370 U.S. 254, 260-263, 82 S.
Ct. 1346, 1850-1352, 8 L.Ed.2d 474. See generally 6A
Corbin, Contracts $1443 (1962). In such a situation (and
there may of course be others), the employer is estopped
by his own conduct to rely on the unexhausted griev-
ance and arbitration procedures as a defense to the
employee’s cause of action.”
Id. “(jn determining whether one party has so repudiated
his promise to arbitrate that the other party is excused the
circumstances of the claimed repudiation are critically impor-
tant.” Drake Bakeries, Inc. v. Local 50, American Bakery,
370 U.S. 254, 262-63 (1962). An employer’s repudiation may
take the form of either an express refusal to abide by con-
tractually established grievance and arbitration machinery,
see, e.g., Boone v. Armstrong Cork Co., 384 F.2d 285, 289
(5th Cir. 1967), or conduct which renders the employer
unable or apparently unable to comply, cf. Restatement (Sec-
ond) of Contracts §250(b) & comment c (1979). Substantive
breaches of a bargaining agreement do not necessarily imply
a concommitant refusal to arbitrate over the propriety of
the alleged breach. See Drake Bakeries, 370 U.S. at 262;
Robbins v. George W. Prescott Publishing Co., 457 F. Supp.
915, 921 (D. Mass. 1978). A plaintiff must show some specific
basis for believing that the breaching party would not submit
. the matter to arbitration, and conclusory allegations will not
fulfill this requirement, see Robbins, 457 F. Supp. at 922.
Plaintiffs allege that Eidal notified its employees of the
sale to Jencor only after its consummation. They allege that
- 8a -
Eidal proceeded unilaterally and covertly, in order to un-
dermine the bargaining agreement. The announcement of a
completed transaction deprived plaintiffs of recourse to arbi-
tration before the sale. The July 1982 letter effectively
announced an end to all contractual relations. Although this
letter does not specifically disclaim the duty to arbitrate,
its indication that the contract no longer existed supports
an inference of repudiation. See Kaylor v. Crown Zellerbach,
Inc., 643 F.2d 1362, 1366 (9th Cir. 1981); Smith v. Pitts-
burgh Gage & Supply Co., 464 F.2d 870, 875 (3d Cir. 1972).
Moreover, Eidal did not transfer the bargaining agreement
to Jencor, which signed a pre-hire agreement with the union
and installed a new workforce on quite different terms. The
complaint further alleges that the purported change in own-
ership from Eidal to Jencor was a sham, and that the two
companies are actually the same employer.” These allega-
tions describe with sufficient particularity a sham transac-
tion that constitutes a repudiation.
D.
This case does not implicate the policy concerns which
warranted the borrowing of a federal rule of timeliness in
DelCostello. “A Vaca v. Sipes suit normally involves an issue
that is intertwined with the day-to-day relationship between
management and labor.” Adams v. Gould, Inc., 739 F.2d
858, 867 (3d Cir. 1984), cert. denied, 105 S. Ct. 806 (1985).
Vaca, Hines, Mitchell, and DelCostello all involved the alleg-
Eidal argues that under a management prerogative clause it had the right
to relocate or close its business, provided that notice and an opportunity for
discussion was first provided to the union. Plaintiffs essentially counter that
it would be a breach of an implied duty of good faith and fair dealing to sell
the business for the sole purpose of evading Eidal’s obligations under the
bargaining agreement. See New Park Mining Co., 273 F.2d at 357 (10th
Cir. 1959). Given the allegations of a sham transaction and repudiation of
the contract, there are clearly fact issues which prevent the assumption that |
the company did not breach the bargaining agreement.
ss
\
ee
edly wrongful discharge of individual employees within the
context of an otherwise established and continuing relation-
ship between management and labor. “Speed and finality
in the resolution of disputes are the most relevant policies
in those situations.” Jd. This case, in contrast, involves not
only an alleged unilateral repudiation of the grievance and
arbitration process, but a severante of all existing contrac-
tual relations. When the contract has been completely repu-
diated and the employer has closed down its business, the
labor law policies that persuaded the Court in DelCostello
to adopt the uniform six-month statute of limitation are not
applicable.‘
The district court dismissed as time barred the federal
claims contained in Counts I-III of plaintiffs’ complaint and
declined to exercise discretionary jurisdiction over the pen-
dent state law claims contained in Counts IV-VI.
Count I states plaintiffs’ primary basis for relief: breach
of the collective bargaining agreement. For the reasons stated
in Part II of this opinion, the district court erred in holding
on the basis of the pleadings that this claim is sufficiently an-
alogous to a hybrid action to warrant the application of the
federal six-month statute of limitations under DelCostello.
*Farr v. H K. Porter Co., 727 F.2d 502 (5th Cir. 1984), the strongest case
relied upon by defendants, does not indicate otherwise. In Farr, the court
applied §10(b)’s limitation period to employee claims against H. K. Porter
and the local union for failure to negotiate over the sale of a brickmaking
plant. Unlike Eidal, Porter never repudiated. The transaction instead took
-place in the context of an open and continuing relationship. The plaintiffs
could assert only that the sale was mishandled by the employer and union
working in conjunction, not that contractual relations had broken down at
the employer’s instigation. H. K. Porter was decided after a full trial on the
merits. It would be premature to dismiss this action when plaintiffs’ allega-
tions concerning contract repudiation must be accepted as true.
- 10a -
If upon development of the facts it is established that the
contract was not repudiated as alleged, then the six-month
limitations period will apply. Otherwise, the case is governed
by the most analogous New Mexico statute of limitations.
Count II charges the union with violating its duty of
fair representation by, among other things, failing to pro-
tect the rights of the parties in connection with the sale.
The parties in this case have addressed only the analogy
between plaintiffs’ section 301 claims against Eidal and
Jencor and the facts of Hoosier versus those of DelCostello.
No party has briefed or argued the timeliness of an inde-
pendent claim against the union. Moreover, like the Count
I claim, the applicable statute of limitations governing this
claim may depend on the facts. We therefore decline to decide
what limitations period is applicable to Count I1, and we
remand this issue for an initial decision by the district court.
Count III asserts that Eidal wrongfully discharged its
employees. The complaint contends that these terminations
helped impiement Eidal’s plan to evade the bargaining agree-
ment. This alleged link with the breach of contract described
in Count I indicates that these wrongful discharge claims
should not be viewed as subject to section 10(b)’s limitations
period. Even those workers who were discharged before the
sale to Jencor allegedly had no firm basis for objecting until
they realized that the transaction was a sham and that Eidal
had repudiated the contract. The timeliness of Count III is
therefore governed by our analysis of Count I.
Counts IV-VI seek relief under New Mexico law. The
district court declined to exercise jurisdiction over these
counts in the absence of any timely claim under federal law.
Having reinstated plaintiffs’ federal claims we also reverse
the dismissal of plaintiffs’ state law claims. On remand, the
district court retains the discretion to decline jurisdiction if
it again becomes warranted during the course of litigation.
-lla-
See 13B C. Wright & A. Miller, Federal Practice and Pro-
cedure §3567.1, at 142-43 & n.31 (2d ed. 1984) (citing Unit-
ed Mine Workers v. Gibbs, 383 U.S. 715, 727 (1966)).
IV.
The judgment of the district court dismissing the com-
plaint is reversed and the case is remanded for further pro-
ceedings consistent with this opinion.
- 12a -
EXHIBIT 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD GARCIA, et al.,
Plaintiffs,
vs. No. CIV-84-142 C
EIDAL INTERNATIONAL CORP.,
et al.,
Defendants.
MEMORANDUM OPINION
Filed September 4, 1984
This matter comes before the Court on three Motions
to Dismiss, one each filed by the Defendants Jencor Inter-
national Corporation, Eidal International Corporation, and
the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Local Lodge 338. The Plaintiffs have also filed a Motion to
Strike the Union’s Statute of Limitations Defense. The
Court, having considered the parties’ memoranda and the
legal authority pertinent to the issues, finds and concludes
that the Defendants’ Motions are well-taken and should be
granted.
The Plaintiffs are former employees of Eidal Interna-
tional Corporation (“Eidal”) and, as pertinent to that Defen-
dant for the disposition of this motion, have alleged in Count
I of their First Amended Complaint a violation of the Col-
lective Bargaining Agreement (“CBA”) which their union
had negotiated with Eidal. The terms of the CBA were to
run from August 2, 1981 to July 31, 1984. In January 1982
Eidal began laying off its employees. These layoffs contin-
ued until July 1982 when Eidal ceased manufacturing in New
Mexico and all remaining employees were terminated. The
present lawsuit was commenced on January 31, 1984.
- 13a -
Count I alleges a violation of the CBA and, therefore,
a breach of contract. It is alleged that Jencor, as the alter
ego of Eidal, was also bound by the CBA. Count II alleges
that the union violated its duty of fair representation. Counts
III, IV, V, and VI are pendent claims which respectively
allege wrongful discharge, a conspiracy to defraud, the tor-
tious interference with contractual relations, outrageous
conduct.
This particular suit, at least as it arises under federal
~law, is very similar to the kind of “hybrid” cause of action,
an alleged violation of the CBA under 29 U.S.C. $185 (here-
inafter §301) joined with a claim that a union violated its
duty of fair representation, which the Supreme Court dis-
cussed in DelCostello v. International Brotherhood of Team-
sters, 51 U.S.L.W. 4693 (U.S. June 8, 1983) (No. 81-2386).
In DelCostello the Supreme Court held that the six-month
statute of limitations period found in Section 10(b) of the
National Labor Relations Act (NLRA), 29 U.S.C. §160(b),
controlled a “hybrid” cause of action based on the breach of
a CBA and the breach of a union’s duty of fair representation.
The present action is very similar to Benson v. Gener-
al Motors Corporation, 716 F.2d 862 (llth Cir. 1983) where-
in plaintiffs-employees sued both the employer for breach
of contract and the union for breach of its duty of fair rep-
resentation under §301. In Benson the plaintiffs contended
their seniority rights were violated in that they were not
accorded preferential consideration for employment in cer-
tain new General Motors plants being opened as provided
for in a national agreement between General Motors and
the union. No grievance procedure for alleged violations of
the seniority rights was invoked. Instead, plaintiffs filed suit
more than six months after they were aware or should have
been aware of the alleged injury. The district court, follow-
ing DelCostello, held that plaintiffs claims were barred by
the six-month limitations period of §10(b) and granted sum-
- 14a -
mary judgment for the employer and union. The court of
appeals agreed with the district court’s statement of the law,
but remanded the case because fact issues existed as to when
employees were or should have been aware of the injury
complained of.
The Tenth Circuit has also recently analyzed the Del-
Costello case in the context of the Railway Labor Act, a
distinction of no moment for the purpose of these motions.
The Tenth Circuit noted that:
The Court [in DelCostello] held that the six-month
statute of limitations expressly provided for §10(b) of
the NLRA should apply to a hybrid breach of contract/
duty of fair representation claim brought pursuant to
that Act; a breach of the implied duty of fair represen-
tation is most analogous to an ‘unfair labor practice,’
which is actionable before the National Labor Relations
Board under §10 of the NLRA.
Barnett v. United Air Lines, Inc., ___ F.2d ___., __, slip
op. at 10 (10th Cir. June 21, 1984). The Court has consid-
ered the Plaintiffs’ attempts to distinguish DelCostello and
finds them unpersuasive. Further, this Court agrees with
the analysis expressed in Perez v. Dana Corporation, 718
F.2d 581 (3d Cir. 1983) that DelCostello should be applied
retroactively.
“(T]he §10(b) period begins to run. . . when plaintiffs
either were aware or should have been aware of the injury
itself. . . .” Benson v. General Motors Corp., 716 F.2d at
864. In the instant case as alleged in Count I, paragraph 4
of the First Amended Complaint, defendant Eidal began
laying off employees in January 1982. Those layoffs contin-
ued until July 1982 when Eidal ceased manufacturing in New
Mexico and all remaining employees were terminated. See
Exhibit B to the First Amended Complaint. The six-month
- 15a -
statute of limitations would thus, at the latest, begin to run
from July 22, 1982 when Eidal ceased operations and Jencor
commenced operations. As more than eighteen (18) months
passed from July 22, 1982 until commencement of this action
on January 31, 1984, the action is barred by §10(b) of the
National Labor Relations Act and DelCostello.
Finally, the Court will not exercise its discretion over
the remaining pendent state claims. See United Mine Work-
ers v. Gibbs, 383 U.S. 715 (1966). An order in accordance
with this Memorandum Opinion will be entered forthwith.
SANTIAGO E. CAMPOS
United States District Judge
- 16a -
ee ea
EXHIBIT 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD GARCIA, et al.,
Plaintiffs,
VS. No. CIV-84-142 C
EIDAL INTERNATIONAL CORP.,
et al.,
Defendants.
ORDER
Filed September 4, 1984
THIS MATTER comes before the Court on three Mo-
tions to Dismiss filed by the Defendants Jencor Internation-
al Corporation, Eidal International Corporation, and the
International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO, Local
Lodge 338. The Court, having considered the parties’ mem-
oranda, examined the pertinent legal authority, and in accor-
dance with its Memorandum Opinion finds and concludes
that the Motions are well-taken and should be granted; :
IT IS, THEREFORE, ORDERED that the above-
described Motions to Dismiss should be, and hereby are,
granted, and the Complaint is, hereby, dismissed.
SANTIAGO E. CAMPOS
United States District Judge
- 17a -
_— eds |
EXHIBIT 4
JANUARY TERM - March 12, 1987
Before Honorable Monroe G. McKay, Honorable Stephanie
K. Seymour and Honorable John P. Moore, Circuit Judges.
RICHARD GARCIA, et al.,
Plaintiffs-Appellants,
v. : No. 84-2255
EIDAL INTERNATIONAL CORPORATION,
etc., et al., ) i
Defendants-Appellees.
This matter comes on for consideration of appellees’ peti-
tion for rehearing filed in the captioned cause.
Upon consideration whereof, it is ordered that appel-
lees’ petition for rehearing is denied.
ROBERT L. HOECKER, Clerk
- 18a -
EXHIBIT 5
LABOR-MANAGEMENT RELALATIONS 29
$185. Suits by and against labor organizations
(a) Suits for-violation of contracts between an employ-
er and a labor organization representing employees in an
industry affecting commerce as defined in this chapter, 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 controver-
sy or without regard to the citizenship of the parties.
(b) Any labor organization which represents employ-
ees in an industry affecting commerce as defined in this chap-
ter and any employer whose activities affect commerce as
defined in this chapter 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 employees whom it represents
in the courts of the United States. Any money judgment
against a labor organization in a district court of the United
States shall be enforceable only against the organization as
an entity and against its assets, and shall not be enforcea-
ble against any individual member or his assets.
(c) For the purpose of actions and proceedings by or
against labor organizations in the district courts of the Unit-
ed States, district courts shall be deemed to have jurisdic-
tion of a labor organization (1) in the district in which such
organization maintains its principal office, or (2) in any dis-
trict in whic} its duly authorized officers or agents are
engaged in representing or acting for employee members.
(d) The service of summons, subpoena, or other legal
process of any court of the United States upon an officer or
agent of a labor organization, in his capacity as such, shall
constitute service upon the labor organization.
- 19a -
eT
(e) For the purpose of this section, in determining
whether any person is acting as an “agent” of another per-
son so as to make such other person responsible for his acts,
the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be
controlling.
- 20a -
EXHIBIT 6
LABOR-MANAGEMENT RELATIONS 29
$160. Prevention of unfair labor practices — Powers of
Board generally
* * *
(b) Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice, the Board,
or any agent or agency designated by the Board of such pur-
poses, shall have power to issue and cause to be served upon
such person a complaint stating the charges in that respect,
and containing a notice of hearing before the Board or a mem-
ber thereof, or before a designated agent or agency, at a
place therein fixed, not less than five days after the serving
of said complaint: Provided, That no complaint shall issue
based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against
whom such charge is made, unless the person aggrieved
thereby was prevented from filing such charge by reason of
service in the armed forces, in which event the six-month
period shall be computed from the day of his discharge.
Any such complaint may be amended by the member, agent,
or agency conducting the hearing or the Board in its discre-
tion at any time prior to the issuance of an order based there-
on. The person so complained of shall have the right to file
an answer to the original or amended complaint and to appear
in person or otherwise and give testimony at the place and
time fixed in the complaint. In the discretion of the member,
agent, or agency conducting the hearing or the Board, any
other person may be allowed to intervene in the said pro-
ceeding and to present testimony. Any such proceeding shall,
so far as practicable, be conducted in accordance with the
rules of evidence applicable in the district courts of the United
States under the rules of civil procedure for the district courts
of the United States, adopted by the Supreme Court of the
United States pursuant to section 2072 of Title 28.
- 2la -
ET
EXHIBIT 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD GARCIA, EPIFANIO
VELAZQUEZ, ROBERT LEE
ARAGON, MANUEL RITO CHAVEZ,
GREGORY ARCHIBEQUE,
J. W. HAMILTON, FRANCIS J.
BOHENSKY, DENNIS EARL
BARELA, ROBERT GUTIERREZ,
LEROY DANIEL ZAMORA,
RICHARD JARAMILLO, MAYO K.
ULIBARRI, RUDOLPH SAIZ,
ADELICIO G. HERRERA, IVAN
ARAGON, RICHARD D. McGUIRE,
CARLOS BENAVIDEZ, ERNEST
TRUJILLO, MIGUEL DELGADO,
FRANK SANCHEZ, ALEX
MADRID, DELBERT DAVENPORT,
JOE LOPEZ, MICHAEL BOCK,
KENNETH GRIEGO, HARVEY
WEST, LINDA POTEET MINTEER,
JOHN G. RAEL, HERMAN
CHAVEZ, ROBERT CHAVEZ,
DAVID TRUJILLO, ORLANDO
QUINTANA, WILLIAM H.
HARRAH, CHRISTOPER GARCIA,
BENJAMIN ARAGON, JOSEPH N.
LEPESKA, TRINIDAD BARELA,
SAM BLEA, JIMMY REID,
THOMAS WILSON, JR., and
STEVE MELTON,
Plaintiffs,
Vv. Cause No. CIV 84-0142C
EIDAL INTERNATIONAL
CORPORATION, a foreign
2a
site
corporation; JENCOR
INTERNATIONAL CORPORATION,
a foreign corporation; and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS,
FORGERS AND HELPERS,
AFL-CIO, LOCAL LODGE NO. 338,
a Labor organization, and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS,
FORGERS, AND HELPERS,
AFL-CIO, a Labor organization,
Defendants.
FIRST AMENDED COMPLAINT FOR VIOLATION
OF COLLECTIVE BARGAINING AGREEMENT, _
WRONGFUL DISCHARGE, VIOLATION OF
THE DUTY OF FAIR REPRESENTATION,
CONSPIRACY TO DEFRAUD, INTERFERENCE
WITH CONTRACTUAL RELATIONS,
AND OUTRAGEOUS CONDUCT
COME NOW the plaintiffs, by and through their attorneys
of record, Marchiondo & Berry, P.A., and H. Richard Black-
hurst, Esq., and for their cause of action against the above-
named defendants state and allege as follows:
GENERAL ALLEGATIONS
1. Plaintiff Epifano Velazquez is a resident of Rio
Rancho, New Mexico; plaintiffs Robert Lee Aragon, Man-
uel Rito Chavez, Gregory Archibeque, J. W. Hamilton, Fran-
cis J. Bohensky, William K. Harrah, Robert Gutierrez,
Leroy Daniel Zamora, Richard Jaramillo, Mayo K. Ulibarri,
- 3a -
| |
.
Rudolph Saiz, Adelicio Herrera, Orlando Quintana, Carlos
Benavidez, Ernest Trujillo, Miguel Delgado, Frank Sanchez,
Delbert Davenport, Michael Bock, Joe Lopez, Kenneth
Griego, David Trujillo, Richard Garcia, Joseph N. Lepeska,
Jimmy Reid, Thomas Wilson, and John G. Rael are resi-
dents of Albuquerque, New Mexico; plaintiffs Dennis Barela,
Harvey West, Ivan Aragon, Richard D. McGuire, Robert
Chavez, Trinidad Barela, and Linda Poteet Minteer are res-
idents of Los Lunas, New Mexico; plaintiff Alex Madrid is
a resident of Bernalillo, New Mexico; plaintiffs Herman Cha-
vez, Benjamin Aragon, and Steve Melton are residents of
Peralta, New Mexico; plaintiff Christopher Garcia is a resi-
dent of Belen, New Mexico; plaintiff Sam Blea is a resident
of Rainsville, New Mexico; and plaintiff J. W. Hamilton is a
resident of Corrales, New Mexico.
2. Defendant Eidal International Corporation is a for-
eign corporation doing business, or formerly doing business,
in Bernalille County, New Mexico, and engaged in an indus-
try affecting interstate commerce.
3. Defendant Jencor International Corporation is a for-
eign corporation doing business in Bernalillo County, New
Mexico, and engaged in an industry affecting interstate
commerce.
4. Defendant International Brotherhood of Boilermak-
ers, Iron Ship Builders, Blacksmiths, Forgers, and Help-
ers, AFL-CIO, Local Lodge No. 338 is a labor organization
as defined by the National Labor Relations Act and is a sub- ]
sidiary and agent of defendant national labor organization
International Brotherhood of Boilermakers, [ron Ship Build-
ers, Blacksmiths, Forgers, and Helpers, AFL-CIO.
5. Plaintiffs are former employees of defendant Eidal
International Corporation, who are no longer so employed
- 24a -
es
OSS eae a “7
‘
by virtue of the acts complained of in this lawsuit, and are
members or former members of defendant International
» Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, Lodge No. 338,
and its parent organization.
6. Plaintiffs collectively bring this action as a class
action, pursuant to Rule 23 of the Federal Rules of Civil
Procedure, for and on behalf of themselves as well as all
other former Eidal employees similarly situated.
7. This Court has jurisdiction of this action pursuant
to §301 of the Labor Management Relations Act, 29 U.S.C.
§185; 28 U.S.C. §1337, and the Court’s pendant and ancil-
lary jurisdiction thereto.
COUNT I
VIOLATION OF COLLECTIVE
BARGAINING AGREEMENT
1. Plaintiffs restate Paragraphs 1 through 7 of their gen-
eral allegations previously set forth.
2. That on or about August 2, 1981, defendant Inter-
national Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers of America, AFL-CIO,
Local Lodge No. 338 (hereinafter “Union”) and defendant
Eidal International Corporation (hereinafter “Eidal”) did
enter into a collective bargaining agreement, a true and cor-
rect copy of which is attached hereto as Exhibit “A,” cover-
ing all employees in the following bargaining unit:
All production and maintenance employees, warehouse-
men, truck drivers, and inspectors, certified as per
N.iu.R.B., but excluding all office and clerical employ-
ees, the office janitor, sales employees, guards, profes-
sional employees, assistant foremen and foremen.
- 25a -
That the term of such contract was from August 2, 1981,
until July 31, 1984. That in the normal course of events an
identical or substantially similar contract would have been
entered into at the expiration of this contract by the Union
and Eidal.
3. That plaintiffs were employees performing work
within such defined bargaining unit during the effective peri-
od of the aforementioned collective bargaining unit and were
entitled to the rights and protections accorded by such col-
lective bargaining agreement, negotiated on their behalf by
defendant Uision.
4. That in 1982 defendant Eidal announced that it had
sold all of the work previously performed by employees in
the aforementioned bargaining unit to Jencor International
Corporation (hereinafter “Jencor”). That in anticipation of
such sale, and commencing in approximately January 1982
defendant did successively “lay off’ groups of employees,
until July 1982, at which time those remaining were termi-
nated and those who had been laid off were advised that
they would not be recalled, as evidenced by Exhibit “B”
attached hereto.
5. The defendant Eidal did announce to its employees
that they could apply to defendant Jencor for employment.
That defendant Jencor at no time did ever intend to rehire
any significant number of former Eidal employees and defen-
dant Eidal did fail to specifically include any such provision
in any sale agreement. That after hiring a few token for-
mer Eidal employees, defendant Jencor did go out on the
open market and did complete its work force with outside
employees. That the Jencor employees were hired on terms
contrary to the collective bargaining agreement previously
mentioned and for substantially less pay.
- 26a -
4¥
6. That defendant Eidal and defendant Jencor are the
alter egos of each other, and furthermore, in essence, con-
stitute a single employer. That the ostensible change in own-
ership was a fraudulent and sham transaction, designed to
reduce operational overhead at the expense of Eidal’s em-
ployees.
7. That being the “alter ego” of defendant Eidal, defen-
dant Jencor was obligated, and legally bound to assume the
provisions of the collective bargaining agreement in full force
and effect at the time of the purported change in owner-
ship, and to abide by its terms, including calling formerly
laid off employees back to work according to seniority (Arti-
cle 20); permitting bargaining unit employees to perform the
work in the bargaining unit; not replacing the employees in
the bargaining unit with outsiders; offering bargaining unit
employees employment at the agreed-upon contract rates;
contributing to the Union Pension Plan for the benefit of
such employees (Article 12), and accruing to the benefit of
such employees vacation pay, seniority, group life, health,
and accident insurance and other benefits of the contract.
8. That defendants Eidal and Jencor did breach such
collective bargaining agreement by transferring the work
to be performed in the bargaining unit to a fraudulent and
sham entity; by terminating the employees in the bargain-
ing unit; by failing to rehire or recall the former Eidal
employees to the new positions with Jencor on the basis of
seniority; by hiring outsiders to fill such positions without
first offering such positions to the former Eidal employees;
by offering employment at rates substantially lower than
the agreed-upon contract rates; and by causing the former
Eidal employees to lose their employment, accrued year of
seniority, and benefits they would have been entitled to
under the contract. Defendant Union did acquiesce in the
breach of contract.
- 27a -
9. That, in the alternative, if it is shown that defen- |
dant Jencor was not and is not the alter ego of defendant |
Eidal; then it is alleged that Jencor is the successor to Eidal,
and that by its acts and deeds it did expressly and implied- ‘
ly adopt and consent to be bound by Eidal’s collective bar-
gaining agreement, attached hereto as Exhibit “A.”
10. That the conduct of defendants Jencor and Eidal
and defendant Union as set forth above is so outrageous,
wanton, and malicious so as to entitle those injured there-
by to be entitled to recover punitive damages.
11. That as a direct and proximate result of the afore-
mentioned breach of contract, plaintiffs have lost their live-
lihood, have been either unemployed for substantial periods
of time or forced to accept employment at a reduced salary;
have suffered emotional distress and diminishment of their
lifestyle, all of which were foreseeable and known conse-
quences of such breach; and have lost the benefits of the
collective bargaining agreement which they would have been
entitled to but for the actions of defendants Eidal, Jencor,
and Union.
WHEREFORE, plaintiffs pray for judgment, joint and
several, against defendants Eidal, Jencor, and Internation-
al Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers, and Helpers, AFL-CIO, Local 338 and
International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO, for their
compensatory damages, to be shown with specificity at the
trial herein, but collectively exceeding one million dollars
($1,000,000); for punitive damages in an amount of no less
than ten million dollars ($10,000,000); for a pre-judgment
interest on such sums; a reasonable attorney’s fee, their costs
of this action, and for such other just and proper relief as
the Court deems warranted.
- 28a -
Se
COUNT II
VIOLATION OF THE DUTY OF
FAIR REPRESENTATION
1. Plaintiffs restate Paragraphs 1 through 7 of their gen-
eral allegations previously set forth; and Paragraphs 1
through 11 of Count I of this complaint, previously set forth.
2. That the defendant International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO, Local Lodge No. 338, (hereinafter
“Union”) is a labor organization as defined by the National
Labor Relations Act, and was the duly certified bargaining
agent for the bargaining unit described in the collective bar-
gaining agreement, attached hereto as Exhibit “A,” and is
a subsidiary and agent of defendant International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO.
3. That under the provisions and policies of the Nation-
al Labor Relations Act, defendant Unions had a duty to deal
in good faith and to fairly represent the employees in the
bargaining unit.
4. That internal union remedies to correct the acts com-
plained of herein would be futile, or else are unavailable or
inadequate.
5. That in connection with the sale and transfer of defen-
dant Eidal’s bargaining unit work to defendant Jencor, defen-
dant Unions did breach the duty of fair representation owed
plaintiffs in the following, but not limited to, manner:
a. By failing to bargain in good faith with defen-
dant Eidal regarding the sale of the bargaining unit func-
tions to defendant Jencor.
- 29a -
b. By failing to vigorously assert and protect the
rights of the employees in connection with such sale.
c. By failing to negotiate from defendant Jencor a
provision requiring hiring of all of the former Eidal em-
ployees.
d. By failing to file with the National Labor Rela-
tions Board unfair labor practice charges regarding the sale
between Eidal and Jencor:
e. By failing to file with the National Labor Rela-
tions Board unfair labor practice charges on behalf of indi-
vidual former employees of Eidal in connecting with Jencor’s
refusal to hire them.
f. By failing to bring appropriate legal action.
g. By failing to adequately and properly inform for-
mer Eidal employees of their legal rights and remedies.
h. By entering into an illegal pre-hire contract with
Jencor which was subsequently thrown out by the National
Labor Relations Board.
i. By conspiring with defendants Eidal and Jencor,
and causing plaintiffs to lose their employment as a result.
j. By being solely concerned with the continuity
of the union and not the welfare of the bargaining unit
employees.
6. That as a result of violating the duty of fair repre-
sentation owed plaintiffs by the defendant Unions, plain-
- 30a -
tiffs have suffered damages, as will be shown at trial.
7. That the conduct of the defendant Unions is so out-
rageous, wanton, and malicious, so as to warrant the impo-
sition of punitive damages.
WHEREFORE, plaintiffs pray for judgment, joint and
several, against the defendants International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers,
and Helpers of America, AFL-CIO, and its agent Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers of America, AFL-CIO,
Local Lodge No. 338 for their compensatory damages as to
be shown specifically at trial, but collectively exceeding one
million dollars ($1,000,000), for punitive damages in an
amount of no less than ten million dollars ($10,000,000),
pre-judgment interest on such sums, a reasonable attorney’s
fee, costs, and for such other just and proper relief as the
Court deems warranted.
COUNT III
WRONGFUL DISCHARGE
1. Plaintiffs restate and reallege Paragraphs 1 through
7 of the general allegations. Paragraphs 1 through 11 of
Count I of this complaint, and Paragraphs 1 through 7 of
Count II of this complaint.
2. That commencing in approximately January, 1982,
defendant Eidal began to “lay off’ successive groups of
employees on the ostensible basis that there was no work
to be performed. Finally, in July 1982, those employees
remaining were terminated, and those who had been pre-
viously laid off were advised that they would not be recalled,
due to the fact of the sale and transfer of the production
work of defendant Eidal to defendant Jencor.
- la -
3. That such layoffs and terminations were part of a
pre-conceived plan or scheme; that both defendant Eidal and
defendant Jencor knew that the existing collective bargain-
ing agreement was not going to be honored by the defen-
dant Jencor, and that defendant Jencor would not be rehiring
the former Eidal employees, that in anticipation of such
fraudulent transfer of the production work of defendant Eidal
to its alter ego defendant Jencor, defendant Eidal did cause
its normal work to be held up and directed towards defen-
dant Jencor, so that it coujd lay off its employees. That the
defendant Unions condoned and acquiesced in this scheme.
4. That the actions of defendants Eidal, Jencor, and the
Unions, constituted, in essence, a de facto discharge or ter-
mination of the former employees of defendant Eidal, con-
trary to their contract of employment.
5. That such discharge was contrary to the public poli-
cy of the National Labor Relations Act and the Labor Man-
agement Relations Act which, by virtue of the Supremacy
Clause of the United States Constitution, is the public poli-
cy-of the State of New Mexico.
6. As aresult of such wrongful discharge, plaintiffs have
suffered loss of income and livelihood, diminishment of their
lifestyle and other damages to be shown at trial.
WHEREFORE, plaintiffs pray for judgment, joint and
several, against defendants Eidal International Corpora-
tion, Jencor International Corporation, International Broth-
erhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers, and Helpers, AFL-CIO, Local Lodge 338, and
International Brotherhood of Boilermakers, [ron Ship Build-
ers, Blacksmiths, Forgers, and Helpers, AFL-CIO for their
damages suffered as a result of such wrongful discharge to
- 32a -
be shown at trial, but collectively exceeding one million dol-
lars ($1,000,000) and for punitive damages in an amount of
no less than ten million dollars ($10,000,000), pre-judgment
interest on such claims, a reasonable attorneys fee, costs,
and for such other just and proper relief as the Court deems
warranted.
COUNT IV
CONSPIRACY TO DEFRAUD
1. Plaintiffs restate and reallege Paragraphs 1 through
7 of their general allegations, Paragraphs 1 through 11 of
Count I of this complaint, Paragraphs 1 through 7 of Count
II of this complaint, and Paragraphs 1 through 6 of Count
III of this complaint.
2. That the actions of the various defendants previous-
ly set forth constitute a conspiracy to defraud plaintiffs out
' of their employment and livelihood. Such conspiracy was
motivated by an illegal desire to break the collective bar-
gaining agreement, to reduce the overhead of the employ-
ing entity through a sham or fraudulent change of ownership,
and to rid the employing entity of certain employees deemed
for whatever reasons to be undesirable, and to accomplish
such goals by the illegal means previously set forth.
WHEREFORE, plaintiffs pray for joint and several
judgment against the defendants herein for their damages
suffered as a result of such conspiracy, to be shown with
specificity at trial, but collectively exceeding one million dol-
lars ($1,000,000); for punitive damages in an amount of no
less than ten million dollars ($10,000,000), pre-judgment
interest on such claims, for reasonable attorney’s fee, their
costs, and for such other just and proper relief as the Court
deems warranted.
Ss
COUNT V
TORTIOUS INTERFERENCE WITH
CONTRACTUAL RELATIONS
1. Plaintiffs restate and reallege Paragraphs 1 through
7 of their general allegations, Paragraphs 1 through 11 of
_ Count I of this complaint; Paragraphs 1 through 7 of Count
II of this complaint; Paragraphs 1 through 6 of Count III of
this complaint; and Paragraphs 1 and 2 of Count IV of this
complaint.
2. That the actions of the various defendants previous-
ly set forth constitute a tortious interference by defendants
with the employment contract of the plaintiff employees.
That such interference did result in a breach of such contract.
WHEREFORE, plaintiffs pray for a joint and several
judgment against the defendants named herein for their dam-
ages suffered as a result of such tortious interference with
contractual relations to be shown at trial, but collectively
exceeding one million dollars ($1,000,000); for punitive
damages in an amount not less than ten million dollars
($10,000,000); pre-judgment interest on such sums, for a rea-
sonable attorney’s fee, their costs, and for such other just
and proper relief as the Court deems warranted.
COUNT VI
OUTRAGEOUS CONDUCT
1. Plaintiffs restate and reallege Paragraphs 1 through
7 of their general allegations; Paragraphs 1 through 11 of
Count I of this complaint; Paragraphs 1 through 7 of Count
II of this complaint; Paragraphs 1 through 16 of Count III
of this complaint; Paragraphs 1 and 1 of Count IV of this
complaint; and Paragraphs 1 and 2 of Count V of this com-
plaint.
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2. That the conduct of the various defendants, as pre-
viously set forth, is so outrageous in nature as to warrant
the imposition of damages therefor.
3. That as a result of such outrageous conduct, plain-
tiffs have suffered emotional distress, and other injury.
WHEREFORE, plaintiffs pray for a joint and several
judgment against the named defendants herein for their dam-
ages as a result of such outrageous conduct to be shown with
specificity at trial, but collectively to exceed one million dol-
lars ($1,000,000); for punitive damages in an amount of not
less than ten million dollars ($10,000,000); pre-judgment
interest on such sums; for a reasonable attorney’s fee; their
costs in this matter, and for such other just and proper relief
as the Court deems warranted.
DOUGLAS.G. VOEGLER
P.0. Box 568
Albuquerque, NM 87103
(505) 247-0751
H. RICHARD BLACKHURST
320 Gold Avenue SW, Suite 810
Albuquerque, NM 87103
(505) 247-1100
Attorneys for Plaintiffs
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hie |
EXHIBIT A
AGREEMENT
EIDAL INTERNATIONAL -
CORPORATION
and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS,
IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS,
AND HELPERS OF AMERICA, |
AFL-CIO |
LOCAL LODGE NO. 338 |
Effective:
August 2, 1981 to July 31, 1984
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CONTENTS
Article Title Page
1. Recognition 3
2. Management Prerogative Clause 3
3. No Strike - No Lockout 5
4. Union Security 6
5. Check-Off 6
6. Overtime 7
A Hours of Work 8
8. Field Work 9
9. Holidays 9
10. Reporting Pay 10
11. Jury Pay 10
12. Pension Plan 19
13. Vacation 11
14. Seniority 12
15. Adjustment of Grievances 14
16. Arbitration 15
17. Safety and Sanitation 16
18. Discharge 17
19. Classification and Rates of Pay 18
20. Recall From Layoff 18
21. Insurance 19
22. Non-Discrimination 19
23. Saving Clause 19
24. Miscellaneous 19
25. Completed Contract Clause 20
26. Term of Agreement 21
Appendix “A” 22
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EIDAL INTERNATIONAL CORPORATION
and
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS,
AND HELPERS OF AMERICA,
AFL-CIO, LOCAL LODGE NO. 338
Effective August 2, 1981 to July 31 1984.
AGREEMENT
This agreement, made and entered into this second day
of August, 1981, by and between EIDAL INTERNATION-
AL CORPORATION, Albuquerque, New Mexico, herein-
after referred to as the “Company” and INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS, AND HELP-
ERS OF AMERICA AFL-CIO, LOCAL LODGE NO. 338,
hereinafter referred to as the “Union”.
INTENT AND PURPOSE
It is the intent and purpose of this Agreement to pro-
mote and improve industrial and economic relationships
between the employees and the Company and herein to set
forth the basic Agreement covering hours of work, rates of
pay and conditions of employment to be observed between
the parties hereto. For this purpose the parties hereto do
promise and agree as follows:
ARTICLE 1
RECOGNITION
1.1 The Company recognizes the Union as the sole and
exclusive bargaining agent during the term of this Agree-
ment with regards to hours, wages, and working conditions
on behalf of all production and maintenance employees, ware-
housemen, truck drivers, and inspectors, certified as per
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N.L.R.B., but excluding all office and clerical employees,
the office janitor, sales employees, guards, professional
employees, assistant foremen and foremen.
ARTICLE 2
MANAGEMENT PREROGATIVE CLAUSE
2.1 It is mutually recognized and agreed by the com-
pany and the union that, except as abridged, (p. 3) delegat-
ed, granted or modified specifically by this Agreement or
any supplementary agreements that may be hereinafter
ma‘ie, all of the rights, powers and authority the company
had prior to the signing of this or any preceding agreement
are retained by the company, and remain exclusively and
without limitation within the rights of management. The
union recognizes that the company has and retains the exclu-
sive right to manage its business and all its actions and con-
cerns except as expressly limited in this Agreement. The
exercise of these rights, powers and authority retained by
the company are not subject to the grievance procedure
except as hereinafter specifically provided or as might be
expressly limited by some specific provision elsewhere in
this Agreement.
Without limiting the generality and purpose of the fore-
going provision, this includes but is not limited to
(a) The right to select and hire, to promote, to lay off,
to discharge for just cause, demote, discipline and to main-
tain discipline and efficiency of employees;
(b) To determine the schedules of work;
(ec) Determination of products to be manufactured or
services to be rendered.
(d) The location of the business, including the estab-
lishment of new business units, and the relocation or clos-
ing of the present business unit, provided that notice is first
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given and opportunity for discussion is provided to the union
upon proposal to relocate or close the present operations.
(e) The location or relocation of warehouses, the work
to be assigned to each warehouse, the extent to which work
in such warehouses shall be performed by employees cov-
ered by this Agreement.
(f) The determination of the layout and equipment to
be used in the business, the processes, the techniques, meth-
ods and means of manufacture and distribution, the materi-
als to be used and the size and character of inventories.
(g) The determination of financial policies, including
accounting procedures, prices of goods or services, and cus-
tomer relations.
(h) The determination of the size of the work force, the
allocation and assignment of work to workers, the determi-
nation of policies affecting employees subject to the express
provisions of this Agreement, the establishment of quality
standards and judgment of (p. 4) workmanship required the
retirement of employees.
(i) The transfer (transfers out of the unit shall be on a
voluntary basis only) or classification, reclassification, lay-
off of employees.
(j) The control and use of all company property.
(k) The enforcement of all company rules and regulations
now in effect and which may be issued from time to time and
not in conflict with the specific provisions of this Agreement.
(1) The discretion in the employment of the services of
all supervisors, provided Foreman shall not perform work
within the bargaining unit except for training purposes or
in the event of an emergency.
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(m) The determination of employee competency.
(n) The right to contract or subcontract work to or from
other firms.
(0) No present or past practice, prior to this Agree-
ment, shall be binding on the company or the union.
2.2 The question of whether the company has exercised
any of the foregoing rights and powers contrary to the pro-
visions of this Agreement may be taken up under the griev-
ance procedure hereinafter provided.
ARTICLE 3
NO STRIKE - NO LOCKOUT
3.1 The union agrees that durmg the term of this Agree-
ment it will not authorize, encourage, cause, permit, engage
in, or participate in any strike, walkout, sick-outs, slow-
down, work stoppage, picketing, or any other types of refus-
als to perform assigned or ordinary duties of any employee
or other similar activity involving the company, or other
activity which interferes with the company’s operations, or
the storage, handling, sale, or delivery of any products man-
ufactured by or handled by the-company or its suppliers or
customers. The union further agrees that it will not autho-
rize or encourage any of its members to engage in such
prohibited activity and, in case of breach of this provision
by any of its members or any member of the bargaining
unit, it will immediately and publicly disavow any breach
of this clause as a violation of this contract and will use
all reasonable means within its power to end such work
stoppage or other prohibited activity at the earliest possi-
ble time.
3.2 If any employee violates any of the provisions (p.
5) of this Article such conduct shall constitute just cause
for discharge and such discharge shall not be subject to
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review under the Grievance and Arbitration procedure pro-
vided under this Agreement upon any ground except as to
the question of whether or not the employee did violate a
provision of this Article.
3.3 The company agrees that it will not engage in any
lockout during the life of this Agreement, it being specific-
ally understood that this provision is not intended to in any
way limit the company’s right otherwise under this Agree-
ment to cease temporarily or permanently any or all of its
operations and, in case of any controversy pertaining thereto,
the rights of management reserved under the Management
Prerogative Article of this Agreement shall be paramount.
ARTICLE 4
UNION SECURITY
4.1 All present employees covered by this Agreement
and coming under the jurisdiction of the union, as set forth
in the Recognition Clause, Article 1, shall, as a condition of
employment, become members of the union on the sixtieth
(60th) day following the effective date of this Agreement
and shall remain members in good standing during the life
of this Agreement. All employees hired after the effective
date of the Agreement shall, as a condition of employment,
become members of the union on the sixtieth (60th) day fol-
lowing the date of their employment, and shall remain mem-
bers of the union in good standing during the life of this
Agreement.
4.2 “Good standing”, for the purpose of this Agreement
is interpreted to mean the payment or tendering of initia-
tion fees and periodic union dues.
ARTICLE 5
CHECK-OFF
5.1 The Employer agrees during the life of this Agree-
ment to deduct from the net earnings due an employee in
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the last pay period of each month the monthly dues and ini-
tiation fees only on a check-off authorization form as out-
lined below. Said authorization must be properly executed
by the employee and presented to and accepted by the com-
pany. All provisions contained in said form are agreed to
by the (p. 6) company and the union and made a part of this
Agreement.
5.2 The company agrees to remit such deduction to the
secretary-treasurer of the union within twelve (12) days after
the end of each month.
VOLUNTARY CHECK-OFF FORM
, 19
I certify that _ Union _ is my designated collective
bargaining representative, and I hereby voluntarily autho-
rize and direct _ Company _ to deduct from my earnings
due me for the last pay period in each month my monthly
Union dues for that month in the sum of $. and
pay same to the secretary-treasurer of said Union. This
authorization may be revoked by me at any time upon thirty
(30) days notice to the Company and the Union or upon ter-
mination of my employment. This authorization shall be sub-
ject to any limitation required by law or regulation of any
authorized governmental agency.
(Employee)
ACCEPTED:
(Company)
By
(Form not valid until signature checked and authorization
accepted by the Company). A form to Check-Off initiation
fees will be prepared and submitted by the Union to the
Company for approval.
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ARTICLE 6
OVERTIME
6.1 Overtime at the rate of one and one-half (1 1/2) times
the employee’s base hourly rate of pay for his classifications
of work shall be paid under the following conditions.
(1) For all hours in excess of eight (8) hours in any
twenty-four (24) hour period. (p. 7)
(2) For all hours worked in excess of forty (40) hours
per week.
(3) For ail hours worked on Saturday.
Two (2) times the basic hourly rate of pay will be
paid for all hours worked on Sunday. ~
6.2 Overtime payment shall not be duplicated for the
same hours worked under any of the terms of this Agree-
ment, and to the extent that hours are compensated for at
overtime rates under one provision they shall not be count-
ed as hours worked in determining overtime under any other
provision.
6.3 Overtime will be distributed as equally as possi-
ble within each classification among employees who are qual-
ified and substantially equally competent in performing the
work involved. Employees will be expected to perform over-
time assignments.
6.4 Employees will be given $3.50 in lieu of a meal
when it is necesary to work in excess of ten (10) consecu-
tive hours. It is understood that $3.50 will not be given
when employees are scheduled to work ten (10) hour shifts.
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ARTICLE 7
HOURS OF WORK
7.1 The work week shall start on Monday at 6:45 a.m.
Forty (40) hours per week shall constitute a work week. Mon-
day through Friday inclusive.
7.2 First Shift. Where more than one shift is worked,
the first shift shall consist of eight (8) hours work exclusive
of the one-half (1/2) hour lunch period, which shall be on the
employee’s time. The pay for a full first shift period shall be
a sum equivalent to eight (8) times the base hourly rate.
7.3 Second Shift. The second shift shall start immedi-
ately after the first shift and shall consist of eight (8) hours
work, exclusive of the one-half (1/2) hour lunch period, which
shall be on the employee’s time.
7.4 Third Shift. The third shift shall be a seven (7) hour
period with a lunch period on company time.
7.5 Shift Differential. Employees on the second and
third full shift shall receive twenty cents ($.20) per hour pre-
mium over and above their base hourly rate.
7.6 Employees will be given a ten (10) minute break
during the first and second halves of the shift.
7.7 Employees shift preference by plant seniorty will
be recognized, provided, skills, abilities, and (p. 8). perfor-
mances needed are avaiable upon each shift to satisfactori-
ly and properly satisfy job needs.
ARTICLE 8
FIELD WORK
8.1 All field work performed away from the plant in
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Albuquerque and immediate vicinity shall be at fifty cents
($.50) per hour over the employee’s regular rate.
ARTICLE 9
HOLIDAYS
9.1 The following days shall be recognized as holidays
under the terms and conditions of this Agreement, New
Year’s Day, Good Friday, Memorial Day, Fourth of July,
Labor Day, Thanksgiving Day, Friday following Thanks-
giving Day, December 24th (Christmas Eve Day), Christ-
mas Day and one (1) floating holiday.
9.2 All regular full-time employees covered by this
Agreement shall receive pay at their straight time hourly
rate for all hours they are normally scheduled to work on
said holidays subject to the following conditions. Such em-
ployee must have worked a complete eight (8) hour shift on
which he was scheduled to work immediately preceding and
following such holiday unless absent because of proven sick-
ness or injury or the employee is excused by his supervisor
prior to the holiday.
9.3 Inthe event any of the above enumerated holidays
fall on Sunday, the following Monday shall be observed as
the holiday.
9.4 Employees required to work on any of the above
mentioned holidays shall be compensated for all hours worked
at one and one-half (1 1/2) times their basic hourly rate of
pay in addition to the holiday pay as above provided.
9.5 In the event that a holiday occurs during an em-
ployee’s vacation period, the employee shall receive either
pay at his straigh: time hourly rate for the hours he would
normally have worked on said holiday, or will receive an
additional day’s vacation and pay at the straight time hour-
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ly rate for the hours he would normally have worked on said
holiday. An employee must elect prior to going on vacation
whether or not he desires to receive pay for the holiday or
take an additional day’s vacation with pay. (p. 9)
ARTICLE 10
REPORTING PAY
10.1 Any regular employee who worked on a given day
and who was not notified not to report for work prior to his
regular starting time on the following workday, and who
subsequently reports for work on such following workday.
and is then denied employment for such day, shall receive
pay for four (4) hours’ time at his straight time hourly rate
of pay. In the event an employee works in excess of four (4)
hours he shall be guaranteed eight (8) hours’ work or eight
(8) hours’ pay at his straight time hourly rate of pay. The
guarantee set forth herein shall not apply where the plant,
the department, or any given unit thereof, in which the em-
ployee is regularly employed, is not capable of operation by
reason of circumstances beyond the control of the company.
' ARTICLE 11
JURY PAY
11.1 Jury duty is an obligation and most important part
of our democratic process. Employees who must perform
jury duty shall be given a leave of absence for that purpose.
The company policy is to make up the difference between
the employee’s regular wage and the amount of remunera-
tion that he may receive from the court. This payment will
be made only upon receipt of adequate proof of payment from
the court.
ARTICLE 12
PENSION PLAN
12.1 It is agreed that the union employees of Eidal
International Corporation represented by the International
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Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers of America, AFL-CIO, Local
Lodge No. 338, join the Boilermakers, Blacksmiths Nation-
al Pension Trust. Twenty-five cents ($.25) per employee per
clock hour will be paid to the trust by Eidal International
Corporation. Adjustment will be made in compensation paid
to the employee by Eidal International Corporation as an
offset of the cost to the company at the rate of fifteen cents
($.15) per hour.
12.2 It is agreed that the company will follow the Pension
Plan as outlined in the booklet prepared by the Boilermakers-
Blacksmiths National Pension Trust so that our plan will
conform to all other plans represented (p. 10) by this trust.
12.3 Since the Pension Plan has been accepted by the
union, the union will acknowledge that its pension benefits
have been subject to Good Faith Collective Bargaining
between Eidal International Corporation and the Union and
the union acknowledges further that its members may be
excluded from other employer-funded retirement plans under
the provisions of the Internal Revenue Code. Section 410(b)2.
ARTICLE 13
VACATION
13.1 The company will grant one (1) week’s vacation
with pay (forty (40) hours at straight hourly rate) to all
employees who have been in continuous service of the com-
pany for a period of one (1) year preceding the period in
which the vacation is to be taken. The company will grant
two (2) weeks vacation with pay (eighty (80) hours at straight
hourly rate) to all employees who have been in continuous
service of the company for a period of three (3) years pre-
ceding the period in which the vacation is to be taken. The
company will grant three (3) weeks vacation with pay (one
hundred twenty (120) hours at straight hourly rate) to all
employees who have been in continuous service of the com-
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pany for a period of ten (10) or more years preceding the
period in which the vacation is to be taken. The company
will grant four (4) weeks’ vacation with pay (one hundred
sixty (160) hours at straight hourly rate) to all employees
who have been in continuous service of the company for a
period of eighteen (18) or more years preceding the period
in which the vacation is to be taken.
13.2 Employees who are laid off for lack of work and
who have at least one (1) year’s service with the company
shall receive pro rata vacation on the basis of one-twelfth
(1/12) of his annual vacation for each full month’s service
since his last vacation eligibility date. Employees with less
than one (1) year’s service are not eligible for pro rata vaca-
tion pay. If they are recalled after layoff, they will be given
credit for previous service for the purpose of qualifying for
their first (1st) week’s vacation after completing one (1) year’s
service. For example, if an employee had six (6) months ser-
vice, was laid off then recalled, he would become eligible
“ for (p. 11) vacation after completing six (6) month’s addi-
tional service. When an employee is recalled after layoff,
he will then begin qualifying for his next vacation. Employ-
ees who voluntarily quit or who are discharged for just cause
shall receive * 9 pro rata vacation pay.
13.3 The right to determine the vacation period shall
rest with the company so as to insure the continuous and
proper operations of its business.
ARTICLE 14
SENIORITY
14.1 Seniority is defined as the length of service since
the last date and hour of hiring. The date of hiring is the
date the employee begins work. A seniority list, listing the
employees according to their job classifications, shall be
posted in the plant every three (3) months. The first sixty
(60) days of employment with the company shall be on a pro-
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bationary basis. No employees shall accrue seniority dur-
ing the first sixty (60) days of employment with the company,
and during such sixty (60) day period the employee shall be
considered as on a probationary or trial basis. Upon suc-
cessful completion of his probationary period, an employee
shall acquire seniority from the date and hour of hiring.
There shall be no responsibility for re-employment of pro-
bationary employees if they are discharged or laid off dur-
ing the probationary period. During the probationary period,
an emloyee may be discharged with or without cause and
shall not have recourse to the grievance procedure or to
arbitration.
14.2 In the event of a layoff, the company shall desig-
nate the number of employees in each classification to be
laid off and the employees within each classification to be
laid off and the employees within each classification with
the least seniority shall be laid off first. The Shop Commit-
tee and the Business Manager of the union will be given 78
hours notice of a layoff. An employee who is designated to
be laid off, or who is bumped, may in lieu of layoff, bump
any employee in a classification, if any, in which the employee
has previously worked, who has less seniority with the com-
pany, provided, in the opinion of management, the employee
can satisfactorily perform the job he proposes to bump into.
14.3 Any employee who is recalled to work after layoff
of one month or longer, or who returns to work (p. 12) after
absence of one week or longer, due to accident or illness,
may be required to take a physical examination on his own
time at the com» any’s expense by a doctor selected by the
company, and passing such examination shall be a condition
_ of being returned to work.
14.4 Any employee taking a leave of absence or being
laid off for a period of one month or longer shall upon request
be given a physical examination prior thereto on his own
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time by a company physician but at the company’s expense,
the results of which examination shall be given the employee
in written form.
14.5 When a permanent vacancy occurs in any classifi-
cation, and if filled by promotion, it will be filled three days
after posting, by promoting the employee in a lower paid
classification who has the most seniority, provided that such
employee, in the opinion of the company, is qualified to per-
form the work. The employee who is promoted shall have a
trial period of not to exceed thirty (30) days in his new clas-
sification at the end of which the company can return him
to his previous classification if, in the opinion of the compa-
ny, he is not able to meet the requirements of his new clas-
sification. The union shall be notified in writing as to the
reasons for returning an employee to his previous classifi-
cation. This provision shall not prohibit the hiring of quali-
fied people to fill vacancies as they occur or to restrict the
filling of a vacancy by transfers.
14.6 Employees promoted or transferred from the bar-
gaining unit to positions with the company outside of the
bargaining unit shall retain their accumulated seniority with-
in the bargaining unit, but shall not accumulate additional
seniority while working outside the bargaining unit. When
the company has a vacancy in the classification of field ser-
viceman, first consideration will be given to employees in
the bargaining unit, but time worked as field serviceman
will not count toward bargaining unit seniority.
14.7 Seniority shall terminate for any one of the fol-
lowing reasons.
(1) Voluntary quitting.
(2) Discharge for cause. If the discharged employee is
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reinstated after a hearing, he shall be reinstated with senior-
ity right unimpaired.
(3) Failure to keep Company advised of address dur-
ing period of layoff. (p. 13)
(4) Separation from the Company’s employment by
layoff for a period of one year, if the employee has one year
or more service with the Company.
(5) In all other caSes, after the employee has served
his probationary period, separation from the Company’s
employment by layoff in excess of the number of days of
the individual’s service with the Company.
In case of a bona fide sickness, the Company, at its dis-
cretion may extend the time provided for above.
14.8 All seniority granted employees under the terms
of this Agreement shall be subject to the rights granted by
law to employees who volunteer or are called or censcripted
for active military service under the National Guard Act of
1940, the Selective Training Act of 1948, and any additions
or amendments thereto, or rulings and interpretations there-
of by any authorized court or agency.
ARTICLE 15
ADJUSTMENT OF GRIEVANCES
15.1 The union shall designate a Shop Committee of not
more than five (5) employees for the purpose of taking up
grievances of employees with the managemeiit. The union
shall notify the company of the personnel of this Shop Com-
. mittee and of any subsequent changes in the personnel. The
union agrees in selecting the members of the Shop Com-
mittee that length of service with the company shall be taken
into consideration, and men of not less than ninety (90) days’
continuous service shall be selected, if available. The com-
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pany will recognize such Shop Committee and deal with it
as the representative of the union on all grievances or dif-
ferences as to the meaning or application of any provisions
of this Agreement.
15.2 If any grievance, dispute or controversy as to the
meaning or application of any provision of this Agreement
arises, or should any trouble of any kind arise in the plant,
there shall be no suspension of work on that account, but
an earnest effort shall be made to adjust the same. It is
understood and agreed by the parties hereto that in the
interests of harmony, grievances should be presented and
handled in an orderly manner. No grievance shall be con-
sidered that has not been handled in accordance with the
time (p. 14) provisions set forth herein. The company, in
the interests of prompt handling of grievances, agrees that
the members of the Shop Committee, upon duly notifying
their foreman, shall be allowed to leave work for grievance
meetings. A member of the Shop Committee called by the
company from his home for grievance meetings shall be
compensated for actual hours in the meeting only, at his reg-
uJar hourly rate of pay, exclusive of overtime or shift pre-
miums, by the company. The grievance procedure shall be
as follows:
Step 1. Between the aggrieved employee and his de-
partment foreman.
Step 2. If no satisfactory adjustment is thus reached,
the aggrieved employee may call in a steward thus endeavor
to settle the dispute with the department foreman who may
call in his superior in the supervisory force.
15.3 Any grievance shall be presented in both Steps 1
and 2 within twenty-four (24) hours after its occurrence. Pro-
vided the matter is not adjusted satisfactoriiy, it shall then
be reduced to writing by the steward handling the case, to
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both the Shop Committee and to management within forty-
eight (48) hours after the date of the occurrence of the
grievance.
Step 3. Within twenty-four (24) hours after the receipt
of the written grievance which has proceeded through Steps
1 and 2, the employee, Shop Committee, business agent and
the management shall raeet and consider the dispute and
attempt to adjust it.
Step 4. Provided the grievance is not satisfactorily set-
tled as provided in Step 3, then a representative of the Inter-
national Brotherhood shall be called in to appear with the
Shop Committee to take the case up with management rep-
resentatives in a further effort to arrive at a satisfactory
adjustment. This meeting shall be held not more than five
(5) days after the hearing provided in Step 3.
ARTICLE 16
ARBITRATION
16.1 A grievance based upon an alleged violation by the
company of this Agreement may be submitted to (p. 15) arbi-
tration as hereinafter set forth.
16.2 The union may elect to take the grievance to arbi-
tration by giving the company written notice of its election
to do so within forty-eight (48) hours after the grievance
procedure set forth in Step 4 has been exhausted, and re-
questing the Federal Mediation and Conciliation Service to
submit a panel of seven (7) names of prospective arbitra-
tors. The parties shall alternately strike names from the list
_ with the union striking the first name, and when only one
name remains, that person shall be the arbitrator.
16.3 It shall be the duty of the Arbitrator to hear and
to determine the matter in dispute or controversy and a find-
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ing or award of said Arbitrator shall be final and conclusive
upon the company, the union and the affected employee.
16.4 The Arbitrator shall not have the power to add
to, subtract from, or modify any of the terms of this Agree-
ment. Practices prior to the effective date of this Agree-
ment shall not be considered as basis to determine the
meaning of this Agreement.
16.5 Each party shall bear the expense of presenting
its own case and the expense of its witnesses. The expense
of the Arbitrator shall be shared equally by both parties.
Stenographic expenses shall be borne entirely by the party
desiring the transcript of the record.
16.6 Pending and after the settlement by arbitration
of any dispute or controversy which may arise hereunder,
there shall be no lockout, strike or picketing.
ARTICLE 17
SAFETY AND SANITATION
17.1 The company shall continue to make reasonable
provision for the safety and health of its employees at the
plant during the hours of their employment. Protective
devices to properly protect employees from injury shall be
provided by the company in accordance with the Occupa-
tional Safety and Health Act of 1971. It is agreed that
employees, individually and collectively, will abide by the
rules set up by the parties hereto in the interests of health,
safety and cleanliness and with the regulations adopted under
said Act.
17.2 The company will pay each employee $15.00 per
pair, toward two (2) pairs of safety shoes per year. (p. 16)
17.3 The company, in joint meeting with the Shop Com-
mittee, will select a Safety Committee not to exceed two
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(2) union members to work with the Company Safety Com-
mittee and the Committee shall not meet more often than
once a month, at which time they shall consider all safety
suggestions made by the union committee or other employ-
ees and make recommendations with respect thereto to the
plant superintendent. It is intended that these committees
shall act in an advisory capacity to management to the end
that the safety and health of the employees as individuals
and as a group shall be constantly improved.
17.4 The union agrees to cooperate with the company
in enforcing safety rules posted by the company and any
additional rules or, amendments agreed upon by the Joint
Safety Committee. The company shall have the right to dis-
cipline employees for persistent violation of such rules.
ARTICLE 18
DISCHARGE
18.1 The company retains the right to manage the plant
and direct the working forces, including the right to hire,
promote, transfer, or discharge employees for just cause
such as
(1) Bringing intoxicants, narcotics or other dangerous
drugs onto company property or consuming intoxicants, nar-
cotics or other dangerous drugs in the plant or on company
property or reporting for duty under the influence of intox-
icants or narcotics.
(2) Walking off the job without notifying the shop super-
intendent or foreman.
(3) Refusal to obey legitimate instructions.
(4) Dishonesty or deliberate destruction or removal of
the company’s property.
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(5) Neglect of duty or visiting and loafing during work-
ing hours.
(6) Disorderly conduct, including horseplay and fight-
ing in the plant or on company property.
(7) Failure to report an injury to a foreman or assis-
tant foreman during the shift in which the injury occurred
or when it is discovered.
(8) Incompetence or insubordination. (p. 17)
(9) Excessive absenteeism and/or tardiness, as deter-
mined by the company.
(10) Upon receipt of a third (8rd) warning for offences
except as mentioned above during a twelve (12) month
period.
18.2 It is agreed, however, that any grievance under
the Discharge Clause will be settled through the Grievance
and Arbitration Procedures, Articles 15 and 16.
18.3 Any discharge cases going to arbitration shall be
only as to the question of whether the employee did or did
not violate the rule. No arbitrator shall have the power to
decide the degree or seriousness of the violation or to sub-
stitute his judgment of the discipline merited.
ARTICLE 19
CLASSIFICATION AND RATES OF PAY
19.1 The classifications, job descriptions and hourly
rates of pay shall be as set forth in Appendix “A” attached
hereto and by this reference made a part hereof.
19.2 All employees shall be paid at the contract classi-
fication rates of pay provided in Appendix “A” of this Agree-
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ment. Any employees who receives a rate of pay in excess
of the applicable cor:tract classification rate will not receive
any increases in their rate of pay until the applicable con-
tract classification rate exceeds the rate of pay they are
receiving. At such time as the then applicable contract clas-
sification rate exceeds the rate of pay that such employees
have been receiving, they shall then receive a raise to the
contract classification rate. All to the end that at that point
in time all employees will be paid at the then applicable con-
tract classification rate of pay and no employee will be paid
in excess thereof.
ARTICLE 20
RECALL FROM LAYOFF
20.1 The company will recall to work after layoff in
revers. order to the order of layoff in the same classifica-
tic. us used when laid off. In affording employees recall
rights as herein provided, the company shall notify the
laid-off employees in person, by telephone, telegram or cer-
tified letter at their last (p. 18) known address and the
employee shall return to work within five (5) days of notifi-
cation unless the company extends the time in which to
return. All employees who fail to return to work within such
specified time following notice shall no longer enjoy this recall
right and will thereby forfeit all seniority and seniority rights
with the company.
ARTICLE 21
INSURANCE
21.1 The company will continue in effect the existing
group life, health and accident insurance, except that the
- company may elect to substitute some other insurance com-
pany, and the amount of weekly benefit payable for sickness
and accident will be $125.00. Employees will become eligible
for insurance after their 31st day of continuous employment
and will be covered for thirty (30) days after lay-off.
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ARTICLE 22
NON-DISCRIMINATION
22.1 All recruiting, hiring and promoting in all job clas-
sifications shall be accomplished without regard to race, col-
or, religion, sex or national origin except where sex is a bona
fide qualification.
22.2 All personnel actions such as compensation, ben-
efits, advancement, transfers, layoffs and recall from layoffs
will be administered without regard to race, color, religion,
sex or national origin.
ARTICLE 23
SAVING CLAUSE
23.1 Should any clause or provision of this Agreement
be declared illegal, or be in conflict with any law or regula-
tion covering the business of the company, both parties agree
that the Agreement is automatically amended to comply with
such law or regulation and the rest and remainder of this
Agreement shall not be affected thereby and shall remain
in full force and effect.
ARTICLE 24
MISCELLANEOUS
24.1 The company will furnish employees the tools
needed in the performance of their work. Employees shall
be responsible for the proper care of such tools (p. 19) and
shall replace any missing tools at their own expense.
Employees will be required to sign for all tools issued
to them, which will contain an authorization by the employee
for the company to deduct from any paycheck or other funds
due an employee upon his quitting, being discharged, or other-
wise terminating his employment, the costs of replacing any
missing tools which the employee has failed to otherwise
replace or pay for.
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- 24.2 The company and the union agree that due to a
problem the company and employees have encountered with
tools and equipment disappearing from the plant, it shall
be a condition of employment for all employees to open lunch
boxes, bags, or other containers as they are leaving the plant,
to permit the company’s Security Personnel to check for com-
pany property. It is further agreed that failure to cooper-
ate with the company and its Security Personnel in such
property checks, shall be grounds for termination. Further,
any attempt to remove company property without proper
authorization shall be grounds for termination.
ARTICLE 25
COMPLETED CONTRACT CLAUSE
25.1 The parties acknowledge that during negotiations
which resulted in this Agreement, each had the unlimited
right and opportunity to make demands and proposals with
respect to any subject or matter not removed by law from
the area of collective bargaining, and that the understand-
ings and agreements arrived at by the parties after the exer-
cise of said rights are set forth in this Agreement. Therefore,
the company and the union, for the life of the Agreement,
each voluntarily and unqualifiedly waives the right and each
agrees that the other shall not be obligated to bargain col-
lectively with respect to any subject or matter not specific-
ally referred to or covered in this Agreement even though
such subject or matter may not have been within the knowl-
edge or contemplation of either or both of the partes at the
time they negotiated or signed this Agreement. This, how-
ever, will not preclude the parties from making any changes
by mutual agreement. (p. 20)
ARTICLE 26
TERM OF AGREEMENT
26.1 This Agreement shall become effective as of the
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second day of August, 1981, and shall remain in full force
and effect until and including the 31st day of July, 1984, and
shall automatically be renewed from year to year there-
after unless termination er changed pursuant to the follow-
ing conditions:
(1) If either party elects to terminate such party shall on
a date not less than sixty (60) days, nor more then seventy-
five (75) days, prior to the expiration date of the Agreement,
give written notice to the other party of intention to termi-
nate and by such action the Agreement shall, for all pur-
poses, terminate as of the expiration date of the Agreement.
(2) If either party elects to char ze any of the provis-
ions of the Agreement, such party shall on a date not less
than sixty (60) days, nor more than seventy-five (75) days
prior to the expiration date of the Agreement, give written
notice to the other party specifying the changes desired.
Changes in the Agreement shall be limited to those outlined
in writing and all items of the Agreements not specifically
set forth in the written notice shall be regarded as auto-
matically renewed. Negotiations shall begin within fifteen
(15) days after receipt of such notice.
26.2 This instrument constitute the entire Agreement
between the parties hereto, and the company and the union
and its members will abide by it.
IN WITNESS WHEREOF, the parties hereto have
caused their names to be hereunto subscribed by their appro-
priate officers, duly authorized to do so, all as of the day
and year first above written.
EIDAL INTERNATIONAL CORPORATION
EDMOND J. ATELIAN
President
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INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS
(p. 21) OF AMERICA, AFL-CIO,
LOCAL LODGE NO. 338
By
VICTOR LOVATO,
Secretary-Treasurer and Business
Manager
ROBERT ARAGON, Committeeman
A. G. HERRERA, Committeeman
ALBERT SALAS, Committeeman
JESSIE VALDIVIA, Committeeman
APPENDIX “A”
CLASSIFICATION AND RATES OF PAY. The fol-
lowing classifications and hourly rates of pay shall be in effect
in accordance with the dates as outlined below. It is under-
stood and agreed that the company will have the right to
classify its employees as well as to grant premium increas-
es whenever, in its opinion, the employee merits same and
also to take away premium pay when appropriate. The com-
pany has the descretion to fill or not fill the classification of
- “Layout Man” and to assign or not assign layout type duties
to other employees.
Effective 8-1-1982, and again on 8-1-1983, all classifica-
tion rates will be increased by 100% of the Cost of Living
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increase percentage for the immediate preceding year, based
upon the Consumer Price Index, all as published and deter-
mined by the U.S. Department of Labor, or 5.5%, which-
ever is more. (p. 22)
CLASSIFICATION
JOURNEYMAN MECHANICS RATES PER HOUR
“_ Effective 8-2-1981
Layout Man ;
An employee who is capabie of reading engineering blue-
prints, sketches or diagrams and can transfer the lines and
dimensions to full scale layouts on steel plate, tubing bars
or pipe.
8.76
Welder
Must be certified welder under American Welding Society
criteria, or be able to pass test required by the company.
Must be able to weld using stick rod semi-automatic weld-
ing machines. Must be able to read drawings showing weld
symbols and welding information.
8.76
Welder - T.1.G.
Must be a certified welder under American Welding Soci-
ety criteria for code welding using Tungsten Intert Gas.
8.76
Burner
Must be capable of doing freehand burning and operating
burning machines to the requirements of the Employer.
8.76
Maintenance Mechanic
A person who keeps machinery and mechanical and electri-
cal equipment in a state of good repair, capable of detecting
faulty part or parts, dismantling machine, replacing part or
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RATES PER HOUR
Effective 8-2-1981
parts, reassembling machine, making necessary adjustments
to insure efficient operation, affixes special attachments and
oils and greases machinery and can operate a Hyster on Sat-
urday and Sunday when less than 2 hours of Hyster time is
required.
8.76
Fitter
An employee who is capable of reading blueprints, sketches
or diagrams, and from this information fit various parts into
assemblies to meet specified requirements. He will be re-
quired not only to fit the various (p. 23) parts into the assem-
blies, but also to do all necessary tack welding.
8.76
Spray Painter
An employee who is capable and required to coat surfaces
of manufacturer’s articles, finishes materials with paint, lac-
quer, stain or other types of covering required by the Em-
ployer, with a spray gun. Must be able to disassemble, clean
and assemble spray gun. Have knowledge of necessary pres-
sure in the operation. When necessary, should be able to
use hand brush. Should have knowledge and be able to mix
paints, lacquers, stains and other coating material.
8.76
Machine Operator - Sheet Metal
An employee who is capable and required to operate the
large shear, large press brake and bar bending machines.
8.76
Tool and Die Maker
An employee who has served an apprenticeship of four (4)
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RATES PER HOUR
Effective 8-2-1981
years as a Tool and Die Maker, or who has worked a period
of four (4) years at the tool and die trade. He must have the
ability to design his own tools, jigs, fixtures, dies and so
forth, working from engineering drawings.
8.91
Journeyman Machinist
Sets up and operates all types of machine tools to include
drills, mills, lathes, grinders and boring machines to per-
form machining operations in the making of components and
product parts and their rework or modification. Performs
any necessary layout in connection with the above machin-
ing jobs from either blueprints, sketches or verbal instruc-
tions. Will perform related bench and hand work. Must work
with a limited amount of supervision.
8.91 (p. 24)
Inspector
Complete inspection of major and minor parts, subassem-
blies, assemblies and components using ail types of pre-
cision, standard and special measuring instruments and
inspection equipment. Dimensional inspection with impro-
vised setups using height gauges, surface plate, indicators,
etc. Basic trigonometry to determine angles, chords, and
hole spacing. Concentricity checks with the use of rotab.
Verification of machine setups where standard inspections
are not adaptable. Works from drawings, oral or written
instructions to determine nature and extent of defect. Makes
repetitive layout inspections and sets up complex inspec-
tion equipment. Instructs lower-rated employees. Maintains
all pertinent or necessary records, charts, etc. Performs
related duties.
8.76
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RATES PER HOUR
Effective 8-2-1981
Assembler
An individual who must be able to perform any of the duties
required for both mechanical and electrical assembly. Must
be able to assemble mechanical and electrical units or fabri-
cated parts to form complete units for assemblies using hand
tools or machine tools, read diagrams (mechanical and elec-
trical) and blueprints, measuring instruments and such spe-
cial equipment as may be required, including testing and
approval of all products. Also correctly fitting parts by fil-
ing, grinding and correcting faults.
8.76
Carpenter _
Performs ordinary duties and functions of a Carpenter,
including plans, lay out and performs a wide variety of car-
pentry work using sketched, blueprints, diagrams and oral
and written instructions involving trailer decking, shipping
containers and boxes.
8.76 (p. 25)
CLASSIFICATION
MECHANICS
—-
Welder
Must have a maximum of six (6) months’ experience as a
welder but has not passed the required code test nor has
adequate experience required for a Journeyman Welder.
Additional training will be required to qualify for the high-
. er classification.
7.16
Burner
Must have a minimum of six (6) months’ experience as a
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RATES PER HOUR
Effective 8-2-1981
burner but has not passed the required code test nor has
adequate experience required for a Journeyman Burner.
Additional training will be required to qualify for the higher
classification.
7.16
Spray Painter
Must have a minimum of six (6) months’ experience as a spray
painter but has not passed the required code test nor has
adequate experience required for a Journeyman Spray Paint-
er. Additional training will be required to qualify for the
higher classification.
7.16
Sandblaster
An employee who is capable and is required to remove paint,
seale, grease, tar, rust and dirt from the surface of metal
objects, usually preparatory to machining, painting, polish-
ing or plating by directing a stream of said, grit, or steel
shot and compressed air from a nozzle against the surface
of the objects; wears heavy gloves to protect hands when
holding objects in sandblast stream, and a helmet or hood
as protection against breathing sand-laden air and to pro-
tect eyes.
7.16
Maintenance Mechanic
A person who assists in keeping machinery and mechanical
and electrical equipment in state of good repair, detecting
faulty part or parts, dismantling machine, replacing part or
parts, reassembling machine, making (p. 26) necessary
adjustments to insure efficient operation, affixes special
attachments and oils and greases machinery, and can oper-
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RATES PER HOUR
Effective 8-2-1981
ate a Hyster on Saturday and Sunday when less than 2 hours
of Hyster time is required.
7.16
Fitter
Must have a minimum of six (6) months’ experience as a fitter
but has not passed the required code test nor has adequate
experience required for a Journeyman Fitter. Additional
training will be required to qualify for the higher classifi-
cation.
7.16
Machine Operator
An employee who is capable of operating individual machines,
such as drill presses, grinders, mills, lathes, boring machines,
large shear, large press brake and bar bending machines,
but who must occasionally have assistance in setting up the
various jobs that are required.
7.16
Assembler
An individual who must be able to perform the duties in one
area or one station of the assembly line. Must be able to
read mechanical and electrical diagrams and blueprirts, wire,
and assemble equipment using hand tools.
7.16
CLASSIFICATION
MATERIAL HANDLING
AND OTHERS:
Mobile Crane Operator
An employee whose principal duties are the operation of
power-operated cage controlled cranes.
7.16
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es |
RATES PER HOUR
Effective 8-2-1981
Hyster Operator
An employee whose principal duties are the operation of
power-type cranes and Hyster machines, also inspects equip-
ment daily and performs daily preventative maintenance on
equipment.
6.80 (p. 27)
Crane Rigger
Assists crane operator in affixing crane cable or ropes or
chains, slings, or other grappling equipment to object being
lifted, signals operator when load is ready to be lifted. Fol-
lows load to point of destination and signals operator when
to lower load, removes grappling equipment.
6.80
Tool Crib Attendant
An employee who has charge of tools and equipment such
as wrenches, machine attachments, measuring devices, hand
tools, issues tools to and receives them from workmen, keeps
records of the receipt and issuance of tools.
6.70
Helper
An employee whose work consists of helping other employ-
ees in the classifications listed above, who occasionally per-
forms the operations listed under the machine operator
classification, but whose main job is not repeatedly doing
such work.
6.70
Shop Janitor
Will be required to do normal janitorial work throughout
the shop, shop offices and rest rooms, including but not
limted to, sweeping floors, collecting chips that have come
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RATES PER HOUR
Effective 8-2-1981
from machines, cleaning shop offices; cleaning rest rooms
and cleaning the yard and parking lot.
6.57
Shipping and Receiving Clerk
An employee who is capable of receiving incoming freight,
properly checking, counting and verifying material ship-
ments, and preparing the proper paperwork for inspection,
stores and receiving reports. Must be able to process com-
mercial, government and overseas shipments, including
export packing. Must be able to prepare Bills of Lading and
Invoices, and to distribute and file shipping and receiving
(p. 28) papers. Monitors both in and out bound shipments
and maintains status records. Drives company vehicles,
including trucks to pick up and deliver parts and supplies.
7.72
Storekeeper
An employee who knows, handles and stores all material
and supplies. Also issues material and supplies as required.
He-also-must be able to drive fork lifts and light trucks as
related to Storekeeper duties. Must be capable of keeping
pertinent records.
7.72
Expediter
Moves material and supplies to any machine, department
or area. Keeps records of receipts and deliveries. Sched-
ules the material and work in each work area to insure that
_work is completed on time for final assemble and/or shipment.
6.99
Truck Driver
An employee must have a current chauffeur’s license for the
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RATES PER HOUR
Effective 8-2-1981
State of New Mexico to be able to drive any commercial vehi-
cle. The employee must also have a physical exam from a
physician which qualifies him under the rules of the Depart-
ment of Transportation. He also must have an application
for employment completed showing his driving experience
for the last five years, accident history for the last five years,
and all speeding citations for the last five years. A Compa-
ny Representative must certify that he is qualified to oper-
ate the required vehicle.
Salaried.
Trainee
An employee who has been moved from the helper classifi-
cation into a trainee classification where this individual will
be trained in a planned company training program in a par-
ticular work area. The individual will be trained for six
months and (p. 29) upon successful completion of the pro-
gram, will become a Machine Operator “B”. Wage increases
will be given if performance is satisfactory, at three months
($.10) and again at six months to start of rate range for
Machine Operator “B”.
All employees assigned into Journeyman “A” Classifi-
cation will be required to prove ability by experience or test-
ing. Those failing to qualify will be placed in Mechanic “B”
Classification and held there for a minimum of six (6) months
or until qualifications have been proven.
When the classification of Leadman is utilized by the
company, the employee will be paid ten percent (10%) above
the highest job classification which he supervises.
LEADMAN
A Leadman is a member of the union who has been
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BEST AVAILA
selected by the company to lead a group of union employees
under various classifications, such as welders, fitters, assem-
blers, etc. He receives his instructions from the Plant Super-
intendent or foreman and relays these instructions to the
workers, however, the Plant Superintendent or the fore-
men may direct the work of the workers when necessary.
The Leadman is in a certain classification. He works at
his trade and also directs the efforts of other workers in his
work area or in other work areas, as necessary.
The union reserves the right to file a grievance against
the foreman or Plant Superintendent when the union feels
the Leadman has exceeded his duties and/or authority. This
grievance procedure shall start at Step 3 as provided in Arti-
cle 15, Paragraph 15.3. (p. 30)
EXHIBIT B
REPLY TO BOX 2087
DAIL? §EIDAL INTERNATIONAL
CORPORATION
245 WOODWARD RD,., S.E.
ALBUQUERQUE, NEW MEXICO 87103
July 22, 1982
All Eidal employees, members of the International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers of America, AFL-CIO,
Local Lodge No. 338
is to inform you that Eidal International Corporation
ceased its manufacturing operations at its Albuquerque,
Mexico, plant. As a result of termination of its
facturing operations, it is necessary that all em-
[es be terminated. All employees who are currently
ayoff are hereby notified that they will not be
lled, and all other employees are hereby notified of
termination.
Edmond J. Atelian, President of Eidal International
oration, has requested that I give you this notifi-
on and that I express’ to you his sincere appreciation
your past services. Mr. Atelian has arranged to
ide the Brotherhood with a sum of money to be dis-
uted to all employees who have tenure of more than
2 years, with such distribution to be on the basis
eniority.
rance benefits will be continued for 30 days after
ff for all employees terminated hereby, and for all
oyees who have been subject to layoff within the
30 days.
TELEPHONE (505) 243-1341 CABLE CODE EIDAL TELEX 66 0486
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|
ee
EXHIBIT B
All Eidal employees, et al.
reason for the termination of Eidal operations is
t it has transferred all of its manufacturing opera-
ns and facilities to JENCOR International Corporation,
company owned and controlled by Mr. Gary Jenkins,
sently of Albuquerque, New Mexico. Mr. Jenkins will
ticipate directly in the management and administration
the business of JENCOR.
is presumed that JENCOR will employ some of you in its
ufacturing operations. It is requested that I
ounce to you that it will commence its hiring within
ew days, and those of you wishing to seek employment
uld make application to the Personnel officers of
m6) #
in, on behalf of Mr. Atelian and on behalf of
al International Corporation, please accept our
cere gratitude for your past loyal and diligent
vice.
Sincerely yours,
/s/
Derwood Knight
Chairman of the
Board of Directors
Eidal International Corp.
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KXHIBIT &
Form NLRB-500 FORM EXEMPT UNDER
(4-73) 44 USC. 3512
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
SECOND AMENDED
CHARGE AGAINST LABOR ORGANIZATION OR ITS AGENTS
INSTRUCTIONS: File an original and 3 copies of \DO NOT WRITE
this charge and an additional copy for each organiza- (!N_THIS SPACE
tion, each local and each individual named in item 1 | Case No.
with the NLRB regional director for the region in| 28-CB-2025
which the alleged unfair laber practice occurred or | Date Filed
is OCCUrriNg. October 15,
1. LABOR ORGANIZATION OR ITS AGENTS AGAINST WHICH
ay IS BROUGHT
Wisa’ BERT Tee b. Union Represen- c. Phone No.
tative to Contact
tere Re ang oe vitor Lovato 242-7615
. {P7s"% Pfredes se ghotgend ZIP £2S,querque, N.M. 87102
e. The above-named organization(s) or its agents has (have) engaged in
and is (are) engaging in unfair labor practices within the meaning of
section 8(b), subsection(s) (1) (A) and(2)_ of the National Labor
(List Subsections)
Relations Act, and these unfair labor practices are unfair labor practices
affecting commerce within the meaning of the Act.
2. Basis of the Charge (Be specific as to facts, names, addresses plants
1982
involved, dates, places, etc.) On or about July 17, 1982, the above-
named labor organization negotiated and signed a collective-
bargaining agreement with JENOOR International Corporation,
which agreement includes a union-security clause, at a time
when JENCOR had no employees in the bargaining unit.
. Name of Employer | 4. Phone No.
JENCOR International Corporation 243-1341
. Location of Plant _| yolyed (Street St Ms, | °& Employer Represen-
and ZIP code) 245 Woodward" oa tative to Contact
Albuquerque, N.M. 87103 Almira Saffle
. Type of Establishment (Factory,| 8. Identify Principal | 9. No. of
mine, wholesaler, etc.) Product or Service Workers
: Employed
Factory Trailers 150
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\
EXHIBIT 8 (Continued)
10. Full Name of Party Filing Charge
Adelicio G. Herrera
11. Address of Party Filing Charge tinge city, State 112. Telephone
and ZIP code) Route 5, Box 5329 No.
Albuquerque, N.M. Woy 299-0025
13. DECLARATION
| declare that | have read the above charge and that the statements therein
are true to the best of my knowledge and belief.
By /s/ Adelicio G. Herrera an Individual
(Signature of representative or (Title or office, if any)
person making charge)
ADELICIO G. HERRERA
titan: Route 5, Box 5329 299-0025 October 15, 1982
Albuquerque, N. M. 87123 (Telephone Number) (Date)
WILLFULLY FALSE STATEMENTS ON THIS CHARGE CAN BE PUN-
ISHED BY FINE AND IMPRISONMENT (U.S. CODE, TITLE 18,
SECTION 1001) ¥
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EXHIBIT 9 :
FORM NLRB-501 ~ FORM EXEMPT UNDER
(2-67) 44 US.C. 3512
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
AMENDED CHARGE AGAINST EMPLOYER
INSTRUCTIONS: File an original and 4 copies| DO NOT WRITE
of this charge with NLRB regional director for IN THIS SPACE
the region in which the alleged unfair labor prac- a
tice occurred or is occurring. Date Filed
October 13, 1982
1. EMPLOYER AGAINST WHOM CHARGE BROUGHT
a. Name of Employer Number of Workers
ni
JENCOR International Corporation! -mployed jc
c. Address of Establishment: (Street and |d. Employer Repre-| e. Phone No.
number, city, State and ZIP code) sentative to
245 Woodward Road, SE Contact:
Albuquerque, N.M. 87103 |Almira Saffle 243-1341
f. Type of Establishment: (Factory, mine,
wholesaler, etc.) -
Factory
h. The above-named employer has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a), subsections(1) and
(2) and_.(3) 0 of the National Labor Relations Act,
(List subsections)
and these unfair labor practices are unfair labor practices affecting
commerce within the meaning of the Act.
g. Identify Principal Product
or Service
Trailers
2. Basic of tne Charge (Be specific as to facts, names, addresses, plants
involved, dates, places, etc.) On or about July 17, 1982, the
above-named Employer negotiated and signed a collective-
bargaining agreement with International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local Lodge No. 338, AFL-CIO, which agreement
includes a union-security clause, at a time when the
Employer had no employees in the bargaining unit.
Since on or about July 22, 1982, the above-named Employer
has failed and refused to hire Adelicio G. Herrera in
retaliation for his protected, concerted or union activities.
By the above and other acts, the above-named employer has interfered with,
restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act.
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EXHIBIT 9 (Continued)
3. Full Name of Party Filing Charge (If labor organization, give full name,
including local name and number)
Adelicio G. Herrera
4a. pea A a and number, city, State, and 4b. Telephone No.
C Route 5, Box 5329 _
Albuguergque, N.M. 87123 299-0025
5. Full Name of National or International Labor Organization of Which It
Is an Affiliate or Constituent Unit (To be filed in when charge is filed
by a labor organization)
6. DECLARATION
| declare that | have read the above charge and that the statements therein
are true to the best of my knowledge and belief.
By _/S/_Adelicio G. Herrera an Individual |
(Signature of representative rson filing-charge) (Title, if any)
AKDELICIO G ° HERRERA ad
Address Route 5, Box 5329 299-0025 October 13,1982
Albuquerque, N.M. 87123
WILLFULLY FALSE STATEMENTS ON THIS CHARGE CAN BE PUN-
ISHED BY FINE AND IMPRISONMENT (U.S. CODE, TITLE 18,
SECTION 1001) ig
(Telephone No.) (Date)
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EXHIBIT 10
FORM NLRB- 4775
(6-78)
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers,
in the Matter of tron Ship Builders, Blacksmiths, Forgers
and Helpers, Local Lodge No. 338, AFL-CIO
(JENCOR International Corporation)
Case 28-CB-2025
SETTLEMENT AGREEMENT
The undersigned Charged*Party and the undersigned Charging Party,
in settlement of the above matter, and subject to the approval of the
Regional Director for the National Labor Relations Board, HEREBY AGREE
AS FOLLOWS:
POSTING OF NOTICE — Upon approval of this Agreement, the
Charged Party will post immediately in conspicuous places in and about its
office, including all places where notices to members are customarily posted,
and maintain for 60 consecutive days from the date of posting, copies of the
atiached Notice made a part hereof, said Notices to be signed by a respon-
sible official of the Charged Party and the date of actual posting to be shown
thereon. In the event this Agreement is in settlement of a charge against a
union, the union will submit forthwith signed copies of said Notice to the
Regional Director who will forward them to the employer whose employees
are involved herein, for posting, the employer willing, in conspicuous places
in and about the employer’s plant where they shall be maintained for 60
consecutive days from the date of posting.
COMPLIANCE WITH NOTICE — The Charged Party will comply
with all the terms and provisions of said Notice.
We will, together with JENCOR International Corporation,
reimburse all present and former JENCOR employees for dues
and other moneys which they may have paid to International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local Lodge No. 338, AFL-CIO, under the
July 18, 1982, contract between JENCOR and said union.
By entering into this Settlement Agreement, Local Lodge
No. 338 does not admit that it engaged in any violations
of the Act.
*corrected by hand to July 19, 1982
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EXHIBIT 10 (Continued)
REFUSAL TO ISSUE COMPLAINT — In the event the Charging
Party fails or refuses to become a party to this Agreement, and if in the
Regional Director’s discretion it will effectuate the policies of the National
Labor Relations Act, the Regional Director shall decline to issue a Com-
plaint herein (or a new Complaint if one has been withdrawn pursuant to the
terms of this Agreement), and this Agreement shall be between the Charged
Party and the undersigned Regional Director. A review of such action may
be obtained pursuant to Section 102.19 of the Rules and Regulations of the
Board if a request for same is filed within 10 days thereof. This Agreement
is contingent upon the General Counsel sustaining the Regional Director's
action in the event of a review, Approval of this Agreement by the Regional
Director shali constitute withdrawal of any Complaint(s) and Notice of
Hearing heretofore issued in this case, aS well as any answer(s)
filed in response.
PERFORMANCE — Performance by the Charged party with the
terms and provisions of this Agreement shall commence immed
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