Petition for Writ of Certiorari — Daugherty v. AT&T Technologies, Inc.

oo meget

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

GERALD R. DAUGHERTY, ET AL,

Petitioners

versus

AT&T TECHNOLOGIES, INC. AND

COMMUNICATIONS WORKERS OF AMERICA

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

J. COURTNEY WILSON

612 Gravier Street

New Orleans, Louisiana 70130

Telephone (504) 523-4572

Counsel for Petitioners

Pel Hughes Letter Service, 134 Carondelet St., New Orleans, LA (504) 523-2618

Question Presented for Review

The questions presented for review are:

1. Whether plaintiffs raised any genuine issues of fact or law in

opposition to defendants’ motion for summary judgment.

2. Whether the Court erred in finding that collective bargaining

Article 20 (layoff) did not apply.

3. Whether the Court erred in finding that collective bargaining

Article 13, 2.91 (permanent transfer) applied and if it applied,

that its procedure was properly followed, i.e., that plaintiffs’

skills need only be “utilized” (not “required”) at their new

work location.

4. Whether the Court erred in finding that the Union had not

acted arbitrarily and capriciously in reversing its position on

the procedure under Article 13, 2.91, formerly used to require

“matching” surplus with scarcity.

TABLE OF CONTENTS

Question Presented for Review ...............c.cessssccsssessees (i)

ss aaa ennidannneniatiides (ii)

a sn aesariasnseadsanesecaenssousion (iii)

Reference to Opinion Report.....................cc..ccccecssseesses 1

I OUI scnccesnncasnscaenssosshenasonsseancatunsnonse 1

EE EIEN IIE sscneeronnsvascbinnstessdskensssnecocsensumsnecanece 1

TTT cocrldialice casein ccsbncsntdiceeedasenacesmeanseonsanehanis 2

I ia aiiandiicdevonasiiensicesessdainensinrnossdateeresquesonineien 10

ISL ti alibiniacaeinesbieldseiibsnetathininneunseonateiiancseunaiae 21

1. Judgment of the Court of Appeals

2. FRAP 47.6

3. Findings of Fact and Conclusions of Law

by the District Court

(iii)

Table of Authorit

Cases

Celotex Corp. v. Catrett (1986) 106 S.Ct. 2543 ........... 14

Foster v. Bowman Transp. Co. (N. D. Ala. 1983)

Se I CI ciscinstitepincssaiestanbeteihenieninahinnpemnncianadaiidaanasiann 11

Karahalois v. Defense Language Institute (D. C. Cal)

613 Fed. Supp. 440, 447, citing Cases... cceeeeeeeeeee 14

Mastro Plastics Corp. v. N.L.R.B. (1956) 76 S. Ct. 349,

SE GIO" sceoiniissiiaesipeicbssaciatsenscteniniatianpiibeetensaidniibaapins 10

~ Price v. IBT (4th Cir. 1972) 657, F.2d 605, 610........... 13

Professional Managers, Inc. v. Fawer, Bryan, Hardy and

Zatzkis (Sth Cir. 1986) 799 F2d 218, 222 0... 15

Schultz v. Owen-lllinois, Inc. (7th Cir. 1982)

696 F.2d 505, 509 coeccccccsecsccccssssssecesccsssssevesesssssssseveccesee 13

Teamsters Local Union No. 688 v. Crown Cork and

Seal Co. (8th Cir. 1973) 488 F.2d 738.000... 10

Tedford v. Peabody Coal Co. (Sth Cir. 1976)

ET esinincdsandansietisdecaisaiegemactielaeieddbniadaunidinoaphaedaias 13

Vaca v. Sipes (1967) 87 S.Ct. 903, 917, 919... 13

i

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO.

GERALD R. DAUGHERTY, ET AL,

Petitioner

versus

AT&T TECHNOLOGIES, INC. AND

COMMUNICATIONS WORKERS OF AMERICA

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

REFERENCE TO OPINION REPORT

There was no opinion reported.

STATEMENT OF JURISDICTION

(i) The date of the judgment is October 13, 1987 and its time of

entry is October 13, 1987.

(ii) The statute conferring jurisdiction on this Court to review the

judgment by Writ of Certiorari is Section 1254, Judicial

Code. .

STATEMENT OF THE CASE

Plaintiffs filed suit on June 27, 1985. Defendants’ Mo-

tion for Summary Judgment was granted January 14, 1987. That

2

judgment was affirmed without opinion on October 13, 1987.

a)

STATEMENT OF FACTS

Plaintiff's and thei

(1) = InJuly, 1984 plaintiffs were installers employed

by AT&T and were members of the Communication

Workers of America Union, Local 10490. They were

working under a contract dated August 23, 1983. (p.

193).

(2) Lodriguss had been employed 14-1/2 years; Sal-

adino 19 years (p. 248); and Daugherty also 19 years. (p.

256).

(3) On July 12, 600 surplus installers, including

plaintiffs, were notified of permanent transfers to New

York City. (p. 626).

(4) = Art. 13 (p. 217-229) specifically sec. 2.91 (p.

218-19) governs permanent transfer and reads as fol-

lows:

2.91 Employees will be selected for permanent

transfer as follows:

(a) The Company will select, by inverse

order of Term of Employment, Employees

assigned to the Base Location from which

such transfer is to be made who have the

skills as determined by the Company in the

(b)

3

skill category required at the destination

location...(Emph. added)

(5) Art. 20 (Adjustments to the Working Force) (p.

238-9) applies to lay-offs as indicated by the following

article, Article 21 titled Lay-off Allowance. (p. 239).

(6) Art. 20, sec. 1 allows “re-assignment of person-

nel or the addition to, or decrease in the working force.”

It does not refer to “transfer.” The terms “assignment”

and “transfer” are distinguished in Art. 13, secs. 1.8 and

1.9 respectively. (p. 217).

(7) Art. 20 required surpluses to be relieved by

laying off junior employees in inverse order of seniority

as shown on a nationwide list from wherever they were

stationed, regardless whether they were surplus. Senior

surplus employees would then be “re-assigned” to va-

cancies at the several locations, again in inverse order.

(p. 238-9).

Permanent Transfers Rejected as force reduction

means in 1983 contract - company and union use it re-

gardless;

(8) Because the company's surplus conditions had

been growing in the installation department, the Joint

Union/Company Committment Committee met on July

4

2, 1984 to deal with the surplus. (Labor Relations Bulle-

tin, July 20, 1984; p. 625-6).

(9) The Bulletin reviewed the history of recent ef-

forts to eliminate the surplus. The union's proposal to

eliminate the surplus was to lay off voluntarily surplus

installers at several local work locations and then perma-

nently transfer nationwide any remaining “surplus skills

(employees)” to several other areas where installers with

less than 10 years would be laid off - “bumped”. (For

convenience, these are termed 10-year employees).

(10) Asthe company stated in the Bulletin, the union

proposed “permanent transfer as a means of force adjust-

ment.” This proposal was “rejected” in the 1983 contract

negotiations and was not included in that contract. (p.

625) (As noted above, Art. 20 does not mention transfers

of any kind as a means of force re-adjustment. Art. 13

does not allow permanent transfer of an employee in

combination with “bumping” to wherever his skills

might be “utilized”. The term “utilized” does not appear

in Art. 13.)

(c)

5

History of arbitration interpretation of Art. 13, Sec.

2.91 - surplus matched to scarcity:

(11) Two 1982 arbitration awards interpreted a pro-

_ vision in the 1980 contract, identical to the one here at

issue.

(12) The Duff opinion (re transfer of union represen-

tatives) recited the history of sec. 2.91 (a) since 1974.

The arbitrator found, as did the Court in part, (para. 3,

p. 668), that

..Article 13, Section 2.91 obligates the

Company to select for permanent transfer

surplus workers in any area for movement

to a destination location where a scarcity

exists by inverse order of their term of

employment, provided they possess the

skills ... required. (emph. added)

(13) The Court's opinion below (para. 3, p. 668) ap-

parently tracks the above cited language from the Duff

opinion, but omits completely mention of “scarcity” and

requirement.

(14) The Duff opinion also found that AT&T had

used 2.91 (1) in 1982 to permanently transfer 285 in-

Stallers to:

... destination locations in Regions where

they were needed. Mary Lou Abbot, East-

ern Region Department Chief of Person-

—cidemimenaniaaanasasa aaa aataaasa aaa iiiiiatat as

6

nel for the company, fulfilled the obliga-

tion of making the initial determination of

Installers who would be listed for each per-

manent transfer. She_matched the number

of surplus employees available in the

Eastern Region with the index and skill

categories required at the destination loca-

tion... (p. 448) (Emph. added)

(15) This permanent transfer procedure was used in

the context of a surpius in one area and a scarcity in

another:

“Variations in consumer demand experi-

enced in the various geographical areas

served by this Company caused a surplus

of Installers to exist in the Eastern Region

and a scarcity of Installers in certain skill

levels in California, Nevada, New York .

and New Jersey.” (p. 448) (Emph. added)

(16) Thecontext forthe 1982 application of sec. 2.91

(a) was testified to at the arbitration hearing by Phil C.

Padgett, National Director for the Installers Bargaining

Unit. He testified that he attended a meeting with com-

pany representatives at which it explained that “work

was available at the destination locations...” (p. 449).

(17) Again at issue in the Fisher opinion (p. 461-470)

was the permanent transfer of 367 employees in 1982

among whom were also union representatives.

d)

T-

(18) Thearbitrator, referring to the Duff opinion con-

cerning the Eastern Region, noted that in “selecting the

employees for permanent transfer the Company utilized

the same procedure which had been followed in the

Eastern Region.” (The Fisher opinion involved perma-

nent transfers from the Southern Region.)

AT&T and Union agree permanent transfer is proper

to adjust work force:

(19) The company implemented a plan similar, but

not identical, to the “rejected” union plan. The second

and third features of the company plan were:

2. Permanent transfers of surplus employees as

proposed the Union.

3. Lay-offs in accordance with provisions of the

Contract as a result of Permanent Transfers which

will most likely remove all Installers with under

ten years of service. (p. 423).

(20) Accordingly, 600 surplus installers were noti-

fied of permanent transfer to New York City on July 12,

1984. (p. 423).

(21) The company plan had two significant, interre-

lated differences from the union plan - all 600 permanent

transfers were to New York City, and to there only, not

to scattered locations, and as a consequence, all “bump-

a")

8

ing” (lay-offs) of junior employees would occur in New

York City.

New York City - A nice place to visit, but not to work:

(22) AT&T (and presumably the union) knew that ap-

proximately fifty percent of permanently transferred

employees gave up their jobs, but that “69% left the roll

when the transfer was to the New York area.” (Labor

Relations Bulletin, May 7, 1984, p. 627).

nstallers were picked for transfer locally (and ther

was no surplus in New Orleans):

(23) |The permanent transfer selections were made in

New Orleans to relieve a purported shortage. (Deposi-

tion of Anderson, p. 439). In fact, there was no surplus in

New Orleans because AT&T installers began working

overtime a week after plaintiffs were terminated. (Depo-

sition of Daugherty, p. 484; deposition of Saladino, p.

441.)

New York City - No need for installers or their skills:

(24) | When plaintiffs arrived in New York City they

were told that they and their skills were not needed; all

that were needed were “arms and legs”; and that for each

installer who accepted permanent transfer a local in-

h)

9

staller would be laid off. (Affidavit of Sweiger, p. 629-

630); affidavit of Isadore, p. 498-99; depositions of Cliff

Fernandez, p. 434-5; Anderson, p. 438-9).

(25) Infact, the company admitted in its Labor Rela-

tions Bulletin that it would lay off one New York City

installer for each employee who accepted permanent

transfer. (p. 626).

Uni + 7 led 2.91 in ia

(26) The use of permanent transfers to reduce the

work force had been rejected as a provision of the 1983

contract. (p. 625).

(27) Before July 12, 1984 2.91 had been expressly

interpreted in the Duff opinion on the context of match-

ing a surplus in one area to a scarcity in another before

an employee was permanently transferred. (p. 418).

(28) Inthe Fisher opinion the situation was different:

The transfer of the 367 employees was

necessary because of a continuing short-

age of work in the Southern Region. The

need for Installers in New Jersey and other

destination locations was not a motivative

factor in the Company's initial decision.

(p. 467)

(29) However, although the union did not at

10

first grieve the lack of matching, iteventually took

the position that 2.91 required matching:

The Union contention that the skill catego-

ries of the three officials were not required

at the destination locations appears to be

an afterthought. (p. 467)

(30) As late as November 30, 1984 the union had

notified the company that it intended to arbitrate griev-

ance No. 12290 of W.C. Cole, Jr. who complained under

2.91 that his skill category was not required at the

destination location. The notice of the union's intent to

proceed to arbitration was signed by A. D. Walker, CWA

representative, who is the union's affiant in this case.

(31) The union determined plaintiffs’ skills could be

“utilized” and that an arbitrator would rule against their

2.91 grievance. (para. 24, p. 283; para. 26, p. 285; para.

21, p. 282).

ARGUMENT

Summary

During 1982, 1983 and mid-1984, AT&T had a continu-

ing, nationwide surplus of installers. In 1984, the period affect-

ing plaintiffs, there were 600 surplus installers.

11

During a surplus, AT&T was contractually obligated to

use Art. 20 to “lay-off” 10-year employees according to a

nationwide seniority list from the bottom up and then, to “re-

assign” installers to these vacancies, again, in inverse order.

However, AT&T misused Art. 13, 2.91 to “permanently

transfer” all 600 surplus installers from several states (e.g.,

Louisiana, Oklahoma, Mississippi) only to New York City

where they would probably “bump” al! 10-year employees in

order to work, and it did so brazenly without a showing of

scarcity. Accordingly, while plaintiffs’ skills could be “utilized”

(defendants' position), they were not “required” (Art. 13, 2.91)

at the destination location. If Art. 20 had been followed, “‘lay-

off’ employees would have been selected all over the U. S. not

justin New York City, and “re-assigned” employees would have

been selected in inverse seniority order, not by skills. None of

plaintiffs (all senior employees) would have been reached. By

avoiding Art. 20, AT&T could target older, senior employees,

while saving the more junior employees (with more than 10

years service) who would have been required to transfer.

Both AT&T and the Union knew that the 600 employees

were not “required” and that 69% ( instead of the usual 50%) of

the transferred employees would quit rather than move to New

12

~~

York City, as admitted by AT&T and as stated in the company

bulletin.* Ineffect, AT&T misused Art. 13 (permanent transfer)

to lay off hundreds of employees. By using Art. 13, instead of

Art. 20, AT&T violated the contract and it was error for the

Court to allow the use of Art. 13 instead of Art. 20.

If it were proper in the first place to use Art. 13 in order

to permanently transfer plaintiffs, then, under the contract, the

Court should have found that their skills were required in New

York City. (In other words, “matched” surplus with scarcity.

Duff opinion.) The Court found only that their skills could be

“utilized” and approved the use of Art. 13 without matching.

The Court could not find that plaintiffs’ skills were

“required” because the plaintiffs could work only by bumping

junior, ten-year employees in New York City. There was no

scarcity with which to match a surplus.

However, a “utilization”/bumping interpretation would

allow the company to permanently transfer any employee any-

where - even to a surplus area - his skill could be utilized, even

if they were not required. Such an interpretation would totally

* By transfernng all installers to New York City, the com-

pany aiso “got nd of” more senior employees and saved more

junior employees.

13

nullify Art. 20 - nationwide layoff, followed by “re-assign-

ment”. The Court's interpretation of Art. 13, 2.91 nullifying Art.

20 was error.

Art. 13 has been referred to in two arbitration decisions

- the Duff and Fisher opinions. These are the only documentary

records of its use by AT&T and of the Union's interpretation. In

1982, AT&T used Art. 13 to permanently transfer/“match”

installérs where their skills were “required”. (Arbitrator Duff).

Later in 1982, AT&T did not match surplus to scarcity; it

claimed only that the skills of the transferred employees could

be “utilized”. The Union objected. (Arbitrator Fisher). It never

introduced any evidence to show when and how it changed its

position before July, 1984.

Accordingly, it was error for the Court to find the Union

was in good faith in acquiescing to the use of Art. 13.

ARGUMENT

The Courts must place a practical and realistic construc-

tion upon labor agreements. Teamsters Local Union No, 688 v,

Crown Cork and Seal Co, (8th Cir. 1973) 488 F2d 738. The labor

contract must be read as a whole._Mastro Plastics Corp, v.

N.L.R.B. (1956) 76 S.Ct. 349, reh. den.

The company had no right to nullify Art. 20 and avoid

14

inverse order force adjustments by permanently transfering the

plaintiffs under Art. 13, 2.91(a) unless they were bonafide

surplus employees and were matched with a scarcity at the other

end (destination location). The employees themselves, not

merely their abstract, disembodied skills, had to be required, not

merely usable after bumping another surplus employee. “Bump-

ing” obviously shows there was no scarcity.

Article 13 was interpreted in exactly this fashion by Ar-

bitrator Duff and the union in the Fisher opinion. In fact, perma-

nent transfer as a means of forced reduction without matching a

surplus to a scarcity, but instead bumping surplus 10-year em-

ployees, was rejected in the 1983 contract negotiations. Never-

theless, the union proposed this same means in the July, 1984

surplus reduction discussion. (The union proposal had the fea-

ture of making the permanent transfers to several locations

around the country and acquiesced in the company-modified

version.)

On July 12, 1984 the company “accepted” the union pro-

posal, but modified it to permanently transfer all surplus em-

ployees to New York City only. Both the company and the union

knew that in New York City, as elsewher, 10-year employees

would get bumped, but they also knew that 69% (instead of 50%)

15

of the permanently transferred employees would quit. In other

words, the company killed more birds with one stone - it got rid

of 40% more surplus employees (near vested, if plaintiffs are any

indication) by permanently transferring them to New York City

instead of all over the country, and retained a correspondingly |

greater number of 10-year employees. By avoiding Art. 20, it

protected its mid-seniority employees with more than 10 years

service, but less than plaintiffs’ terms.

On the other hand, defendants’ contract interpretation is

strained and far-fetched. They contend that Art. 20 does not

apply and that if a permanently transferred employee's skill can

be used even in a surplus area after bumping, then the contract

is Satisfied. Since most employees had several skills, any em-

ployee could be used in any area. This view, of course, totally

ignores the provision of 2.91 that the employee's skill must be

required. The use of the word required in the sense of scarcity is

normal and natural, otherwise there would be few, if any

restrictions on permanent transfer.

The company adopted, and the union acquiesced in, a

permanent transfer/bumping plan which both knew had no

support in prior arbitration history and which had been excluded

————————

16

from and was notin the current contract. This conduct is a breach

of the contract and duty of fair representation. In other words, the

union “rolled over and played dead.” Foster vy. Bowman Transp.

Co, (N.D. Ala., 1983) 562 F. Supp. 806.

The finding that the parties agreed that there was no

contract violation is, by itself, insignificant. It points as much to

collusion or amendment of the contract without membership

ratification as to the correct interpretation. Price vy, IBT (4th Cir.

1972) 657 F.2d 605, 610 held:

...(A)bsent appropriate amendment to the labor

contract, there (can) be no changes in the agree-

ment that would abrogate rights contained in it.

See also Shultz v, Owen-Illinois, Inc. (7th Cir. 1982) 696

F.2d 505, 509. The procedure for amending or at least notifying

the membership was not followed when the union purportedly

agreed with the company that there was no violation. Article 9A

of the contract requires that the company and the union will

apply the contract fairly in accord with its intent and meaning.

This, by the clear documentary record, was not done. (Art. 9A is

at p. 203.)

The union must administer the grievance procedure in

good faith and in a non-arbitrary fashion. Vaca v. Sipes (1967)

87 S.Ct. 903, 917, 919.

VX

17

The Fifth Circuit has held that the union's interpretation

of a contract will be non-arbitrary where it is:

(1) Based upon relevant, permissible union

factors which excludes the possibility of it being

based upon motivation such as personal animosity

or political favoritism; (2) a rational result of the

consideration of those factors; and (3) inclusive of

a fair and impartial consideration of the interest of

all employees. Tedford v. Peabody Coal Co, (Sth

Cir. 1976) 533 F2d 952, 957.

For a union to legally reject an arbitration request, its

rejection

must be based on ‘an informed, reasoned judg-

ment regarding the merits of the claim(s) in

terms of the language of the collective bargain-

ing agreement.’ Karahalois v. Defense Language

Institute (D.C. Cal. 1984) 613 F. Supp. 440, 447,

citing cases.

The Court erred in finding (#6) that plaintiffs failed to

establish that their skills were not required in New York City.

The company itself admitted in its Labor Relations Bulletin that

it would have to bump 10-year employees and plaintiffs were

told this when they arrived in New York City. There was no

scarcity such that plaintiffs’ skills were required as there had

been under the Duff opinion and the union position in the Fisher

opinion and, apparently in the union's intent to arbitrate the Cole

18

grievance. Under the circumstances of at least one arbitrator

(Duff) who would decide in its favor; the rejection of permanent

transfer/bumping from the 1983 contract negotiations; and its

intent to preserve the similar Cole grievance, the union was

clearly arbitrary, capricious, and in bad faith in its refusal to

arbitrate plaintiffs’ grievance.

Rule 56(c) allows summary judgment when there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law. The standard for sum-

mary judgment is the standard for a directed verdict under FRCP

50(a). Celotex Corp, v, Catrett (1986) 196 S.Ct. 2548.

The Fifth Circuit has defined “genuine”:

Anissue is genuine if the evidence supporting its

resolution in favor of the party opposing sum-

mary judgment, together with any-inferences in

such party's favor that the evidence allows,

would be sufficient to support a verdict in favor

of that party. If, on the other hand, the evidence

offered by both moving and opposing parties

would supportenly one conclusion and, even if

all the evidence to the contrary is fully credited

a trial Court would be obliged to direct the

verdict in favor of the moving party, the issue is

not genuine. Professional Managers, Inc. v.

Eawer, Bryan, Hardy and Zatzkis (Sth Cir.,

1986) 799 F.2d 218,222.

19

A verdict for plaintiffs is supported by the inapplicability of Art.

13 and the obvious intent of the contract that Art. 20 should apply

(p. 217, 238, respectively); the context of the use of Art. 13 as set

out in the Duff opinion (p. 448); the union's own position in the

Fisher opinion (p. 467); the rejection of permanent transfer/

bumping as a means of force reduction from the 1983 contract

(p. 422); the union's proposal to use this method anyway in July,

1984 (p. 423); the company's modified use of the union proposal

(p. 423) and the union's acquiescence (p. 286); the lack of a

surplus or scarcity (items 23, 24 supra) and the showing of the

union only that plaintiffs’ skills were usable, not that they were

required as termed in the contract. (p. 282).

CONCLUSION

The Courts below made the twin errors of allowing, first,

AT&T to use Art. 13, 2.91 instead of Art. 20, and second,

adopting a “utilization”/bumping concept for Art. 13, instead of

a “requirement”/matching concept. The Courts further erred by

finding that the Union's acquiesence was in good faith, both with

respect to the substitution of Art. 20 for Art. 13 and the use of Art.

13 without showing “requirement”.

The sum total of all the evidence does not point in only

one direction and clearly no court would be obligated to direct

20

a verdict for defendants. There is genuine evidence that Art. 20,

not Art. 13 applied; that Art. 13 was misused; and that the Union

“caved in” by ignoring Art. 20 and reversing its earlier docu-

mented position about how Art. 13 actually worked.

Accordingly, it was clearly erroneous for the District

Court to grant the Motions for Summary Judgment.

Respectfully submitted,

J. COURTNEY WILSON

Attorney for Petitioners

612 Gravier Street

New Orleans, LA 70130

Telephone: (504) 523-4572

CERTIFICATE OF SERVICE

I certify that I have served the below listed parties by U. S.

mail, first-class postage prepaid, with three (3) copies each of

the foregoing:

Keith Pyburn Kevin D. Fitzpatrick, Jr.

Suite 2800 1430 West Peachtree St.

650 Poydras Suite 701

New Orleans, LA 70130 Atlanta, GA 30309

J. Courtney Wilson

by René R. Nicaud

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO.

GERALD R. DAUGHERTY, ET AL,

Petitioners

versus

AT&T TECHNOLOGIES, INC. AND

COMMUNICATIONS WORKERS OF AMERICA

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIrTH CIRCUIT

APPENDIX

J. COURTNEY WILSON

612 Gravier Street

New Orleans, Louisiana 70130

Telephone: (504) 523-4572

Counsel for Petitioners

22 .

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3122

GERALD R. DAUGHERTY,

Plaintiff-Appellant,

versus

AT&T TECHNOLOGIES, INC., ET AL.,

Defendants-Appellees.

* OK OK OK OK OK OK OK OK OK OK OK OK OK OK

JULES LODRIGUSS (Mrs.),

Administratrix for Jules Lodriguss,

Plaintiff-Appellant,

versus

AT&T TECHNOLOGIES, ET AL.,

Defendants-Appellees.

2 OK OOK OK OK OK OK OK OK OK OK OK OK OK

BERNARD A. SALADINO,

Plaintiff-Appellant,

versus

AT&T TECHNOLOGIES, ET AL..,

Defendants-Appellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

(October 13, 1987)

Before WISDOM, GARWOOD, and JONES, Circuit Judges.-

PER CURIAM:

AFFIRMED. See Local Rule 47.6.

aeieiiaaaamaeaeemeaimaaiamaiiamaimiaiaiiiiiiiiii

23

FRAP 47 U. S. COURT OF APPEALS

47.6. Affirmance Without Opinion

When the Court determines that any one or more of

the following circumstances exists and is dispositve of a

matter submitted to the Court for decision: (1) that a judg-

ment of the District Court is based on findings of fact which

are not clearly erroneous, (2) that the evidence in support of a

jury verdict is not insufficient, (3) that the order of an admin-

istrative agency is supported by substantial evidence on the

record as a whole, or (4) in the case of a summary judgment,

that no genuine issue of material fact has been properly raised

by the appellant, and the Curt also determines that no error of

law appears and an opinion would have no precedential value,

the judgment or order may be affirmed or enforced without

opinion.

In such case, the Court may in its discretion enter

either of the following orders: "AFFIRMED. See Loc.R.

47.6” or “ENFORCED. See Loc.R. 47.6.”

(Amended June 17, 1986).

24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GERALD R. DAUGHERTY, ET AL CIVIL ACTION

versus NO. 85-1731

AT&T TECHNOLOGIES, INC c/w 85-2843, 85-2844

85-2845, 85-2846 &

85-2847

SECTION “B”

These consolidated matters are before the Court on the

motions of defendants for summary judgment. Plaintiffs, former

telephone installers, were employed by defendant, AT&T Tech-

nologies, Inc. (AT&T), and were former members of defendant

union, Communications Workers of America (CWA). Plaintiffs

have alleged a cause of action arising under Section 301 of the

Labor Management Relations Act, 29 U.S.C. § 185. Plaintiffs

claim that AT&T breached a collective bargaining agreement

and that CWA unfairly represented them in connection with this

breach of contract.

The Court, after considering the motions, oppositions

hereto, the arguments of counsel and the applicable law, now

rules GRANTING defendants’ motions for summary judgment.

DATE OF ENTRY 14 JAN. 1987

25

E iy c I S

1. On August 28, 1983, defendants AT&T and CWA

entered into a collective bargaining agreement, installation

contract CWA-7 which expired on May 31, 1986.

2. Plaintiffs, as telephone installers, were members of a

collective bargaining unit represented by the CWA and the terms

and conditions of their employment were governed by the col-

lective bargaining agreement between AT&T and CWA.

3. Article 13, Section 1 of the agreement provides that

the character of installation work makes itnecessary foremploy-

ees to move to different locations and that AT&T would effect

such moves by temporary and permanent transfers.

4. Article 13, Section 2.91 of the agreement provides that

employees will be selected for permanent transfer by AT&T in

inverse order of term of employment and who have “the skills as

determined by the company in the skill category required at the

destination location.”

5. Installers are classified by one of five skill levels

(indices). Index 1 is the least skilled and Index 5 is the most

skilled. In addition, Index 4 and 5 installers are classified by

communications systems on which they are qualified to work.

Index 1-3 installers are transferred according to seniority. Index

26

4 and 5 installers are transferred according to seniority within

index and within communications systems.

6. Article 13, Section 2.91 also provides that employees

selected for permanent transfer with more than fifteen years

service may elect termination of employment in lieu of transfer.

7. Article 7 of the agreement provides for a grievance

procedure. Grievances are to be filed within ninety days of the

action which gave rise to the grievance. Grievances not settled

on the local level may be transferred to the national level.

8. If the national level of the union and the company are

unable to settle a grievance, such grievance may be subject to

arbitration in accordance with Article 8 of the agreement.

9. Article 8 provides that any arbitration decision will be

final.

10. As a result of divestiture, AT&T has reduced the

number of installers from approximately 30,000 in 1971 to less

than 10,000 in 1986.

11. As part of this reduction in force, in July 1984 AT&T

notified approximately 600 installers nationwide, including

plaintiffs and 20 other New Orleans-area installers, that they

were being transferred to New York City.

12. Plaintiffs, Bernard Saladino and Robert Mayo were

| aaa

27

Index 3 installers.

13. Plaintiff, Gerald R. Daugherty, was an Index 4

instaler qualified in TSPS communications systems.

14. Plaintiff Jules Lodriguss was an Index 5 installer

qualified in the Toll Carrier Narrow Band - Broad Band System.

15. On July 29, 1984, Daugherty filed a grievance chal-

lenging the decision by AT&T to transfer him permanently to

New York City on the grounds that the transfer violated Article

13, Section 2.91 of the collective bargaining agreement because

his skill level and communication system experience were not

required in New York City.

16. Daugherty's grievance was handled by CWA Local

10490 through the first four levels of the grievance procedure. In

September, 1984 it was transferred to the national union. There,

the grievance was read and cataloged. Relevant contract provi-

sions were reviewed. Affidavit of A. D. Walker, national repre-

sentative for the installation bargaining union of the CWA,

(Walker Affidavit) p. 6.

17. On September 28, 1984, Walker met with AT&T

management to discuss the agreement. AT&T rejected the

grievance and maintained that Daugherty had been selected in

accordance with Article 13 of the collective bargaining agree-

28

ment. Walker Affidavit, p. 8.

18. Walker and CWA have interpreted Article 13,

Section 2.91 to permit AT&T to transfer employees by inverse

order of seniority, as long as their skills can be utilized at the

destination location, and for index 4 and 5 installers, as long as

their communication system is utilized at the destination loca-

tion. Walker Affidavit, p. 9.

19. Walker also met with Raymond Murray, Assistant

National Director for the Installation Bargaining Unit of CWA,

in regard to the Daugherty grievance. Murray confirmed

Walker's interpretation of Article 13, Section 2.91. Walker

Affidavit, p. 9.

20. Walker also reviewed Daugherty's term of employ-

ment, index level, and communication system. Walker con-

cluded that Daugherty did not have greater seniority than others

in New Orleans within his skill category, that his skill category

could be utilized in New York, and that his communication

system was utilized in New York. Walker Affidavit, p. 9.

21. At the conclusion of the grievance procedure CWA

determined that the grievance lacked sufficient merit to warrant

arbitration. Walker Affidavit, p. 8.

22. On October 11, 1984, plaintiffs, Salandino (sic), Lo-

29

driguss, and Mayo filed a grievance claiming that they were

selected for transfer to New York City without a prior determi-

nation that their skills were not required in New York.

23. The Saladino - Lodriguss - Mayo grievance was

processed by CWA Local 10490 through the first four levels of

the grievance procedures. Walker Affidavit, p. 7.

24. In December 1984, the grievance was transferred to

the national union. There the grievance was read and cataloged.

Relevant contract provisions were reviewed. On March 25,

1986, Walker met with AT&T management to discuss the

grievance. AT&T rejected the grievance and maintained that the

employees had been selected for transfer in accordance with

Article 13 of the collective bargaining agreement. Walker Affi-

davit, p. 7.

25. Walker reviewed the employees’ terms of employ-

ment, index level and communication systems. Walker con-

cluded that the employees did not have greater seniority than

others in New Orleans within their respective skill categories,

that thei skill categories could be utilized in New York and that

Lodriguss' communication system was utilized in New York.

Walker Affidavit, p. 11.

26. Walker also reviewed the grievance with the CWA

30

Installation National Director, two CWA Vice Presidents and

CWA legal counsel. Walker Affidavit, p. 12.

27. At the conclusion of the grievance procedure,

Walker determined that the grievance lacked sufficient merit to

warrant arbitration. Walker Affidavit, p. 8.

28. Neither plaintiff, Collins Ferrandez, nor plaintiff,

Clifford Anderson, filed a grievance.

29. Plaintiffs have filed the Affidavit of Stanley L.

Isidore (Isidore Affidavit) to the effect that at a meeting held in

New York City in July 1984 for installers slated for transfer, a

company official stated that installers were not needed in New

York City.

30. Plaintiffs elected termination rather than to accede to

the transfer.

REASONS

1. Section 301 of the Labor Management Relations Act,

29 U.S.C. § 185, provides that federal courts have jurisdiction to

examine alleged violations of collective bargaining agreements:

Suits for violation of contracts between an em-

ployer 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 juris-

31

diction of the parties without respect to the

amount in controversy or without regard to the

citizenship of the parties.

29 U.S.C. § 185(a).

2. A section 301 claim, such as plaintiffs seek to bring

here, must satisfy two requirements: (1) the employees must not

only show that there was violation of the collective bargaining

agreement; (2) but must also demonstrate that the union

breached its duty of fair representation. Hines v. Anchor Motor

Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed. 2d 231

(1976); Sturgeon v. Airborne Freight Corp., 778 F 2d. 1154 (Sth

Cir. 1985). In this case, plaintiffs have proved neither a violation

of the contract nor a breach of the duty of fair representation.

BREACH OF CONTRACT

3. Article 13, Section2.91 of the collective bargaining

agreement obligates AT&T to select for permanent transfer

surplus workers in any area for movement to a destination

location where a scarcity exists by inverse order of seniority

provided that they possess the skills and index category re-

quired.

4. The Walker Affidavit establishes that the union made

a determination that the skill levels of plaintiffs could be utilized

in New York City and that the communications systems on

32

which plaintiffs Daugherty and Lodriguss were trained were

utilized in New York.

5. The Walker Affidavit also establishes that he was

advised that AT&T concurred in the union's interpretation that

no contract violation existed.

6. The Affidavit of Stanley I. Lee (sic), stating that he

was told that installers were not needed in New York City, does

not establish on the other hand, that the skills of the transferred

employees were not required in New York.

7. Therefore, the argument that the skills of the plaintiffs

were not needed at the destination location and that the transfers

constituted a violation of the collective bargaining agreement is

rejected.

BREACH OF DUTY OF FAIR REPRESENTATION

8. A union's duty to represent includes an obligation to

serve the interests of the members without hostility or discrimi-

nation, to exercise its discretion in good faith, and to avoid

arbitrary conduct. Vaca v. Sipes, 386 U. S. 171, 87 S.Ct. 903, 17

L.Ed. 2d 842 (1967).

9. A union cannotarbitrarily ignore or give only perfunc-

tory review to a grievance. Vaca v. Sipes, 386 U.S. at 191.

10. Thus, CWA had a duty to investigate in good faith

-

33

plaintiffs’ grievances regarding their notices of transfer.

11. If CWA failed to investigate the grievances in good

faith, or if the union arbitrarily or improperly refused to process

the grievance, it breached its duty to plaintiffs and violated

Section 8(b) (1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A). Local

Union No. 12, United Rubber, Cork, Linoleum & Plastic Work-

ers of America v. NLRB, 368 F. 2d 12, 17 (5th Cir. 1966), cert.

denied, 389 U.S. 837 (1967).

12. Plaintiffs’ only allegations concerning a breach of the

duty of fair representation by CWA is that the Union's failure to

arbitrate plaintiffs’ grievances constituted a breach of the duty of

fair representation.

13. However, a failure to arbitrate a grievance does not

amount to perfunctory or arbitrary treatment. A union's broad

discretion in prosecuting grievances includes the right to settle

the dispute short of arbitration. Turner v. Air Transport Dis-

patchers' Association, 468 F. 2d 297 (Sth Cir. 1972).

14. Furthermore, the Walker Affidavit demonstrates that

CWA and AT&T did in fact investigate and ascertain the merits

of plaintiffs’ grievances.

15. Since the union's conduct toward plaintiffs was

34

neither arbitrary, discriminatory, or in bad faith, plaintiffs’

claims must be dismissed.

EAILURE TO FILE GRIEVANCE

16. Neither plaintiff, Fernandez, nor plaintiff, Anderson,

filed any grievance against defendant, AT&T in connection with

their proposed transfer. Before initiating judicial proceedings

relative to a collective bargaining agreement, a plaintiff must

first have sought to exhaust his remedies under the agreement.

Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.

2d 580 (1965). ' Since plaintiffs did not institute the grievance

procedure of the collective bargaining agreement regarding

their claims against AT&T, their claims must be dismissed.

Accordingly,

IT IS THE ORDER OF THE COURT that judgment be

entered in favor of defendants, AT&T Technologies, Inc. and

While a grievant may file suit without fulfilling the

exhaustion requirementif there is a wrongful failure to

process the grievance, the employer's conduct

amounts to a repudiation of the contract's remedial

procedures, or exhaustion would be futile because of

the lack of an impartial decision maker, Eitmann v.

New Orleans Pubiic Service, Inc. 730 F. 2d 359, 362

(5th Cir.), cert. denied, 469 U.S. 1018 (1984), there

have been no allegations concerning wrongful con-

duct or lack of impartiality in this case.

35

Communications Workers of America dismissing the claims of

plaintiffs, Gerald R. Daugherty, Bernard Saladino, Robert

Mayo, Jules Lodriguss, Collins Fernandes and Clifforé Ander-

son at plaintiffs' cost. Judgment will be so entered.

New Orleans, Louisiana, this 14th day of January, 1987.

/s/ Frederick J. Heebe

UNITED STATES DISTRICT JUDGE