Petition for Writ of Certiorari — Garrison v. Cassens Transport Co.
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03 8s98 DEC 2 2003.
| OFFICE OE THE CLERK
No. f
In the
Supreme Court of the United States
DAVID L. GARRISON,
Petitioner,
V.
CASSENS TRANSPORT COMPANY,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
Davip J. MOEN
Counsel of Record
Moen & VALENTINE, LLC
613 East McCarty STREET
JEFFERSON City, MO 65101
(573) 636-5997
Counsel for Petitioner
Becker Gallagher Legal Publishing, Inc.
800.890.5001
QUESTIONS PRESENTED
1. Should this Court’s test for breach of the union’s duty of
fair representation be enlarged or clarified so that
employees working under collective bargaining
agreements have a right to a fair and honest hearing in the
grievance process, OF should the test announced by the
Sixth Circuit be used which focuses on whether the
_ outcome was irrational? ~
2. Did the Sixth Circuit err by failing to apply the correct
standard of review for a Rule 50 motion where the court
failed to list or consider relevant facts advanced by the
non-movant and failed to draw reasonable inferences in
favor of the non-moving party?
3. Did the Sixth Circuit err in Garrison’s case because it
applied the wrong legal standard for breach of the duty of
fair representation in the grievance process by relying on
Airline Pilots Ass’n Int’l v. O’Neil, which involved the
decision to settle a strike; and in doing so, did the Sixth
— Circuit fail to use the correct legal standard for breach of
the duty of fair representation in the grievance process as
required by Hines v. Anchor Motor Freight, Inc.?
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT
The parties to the proceeding are set forth in the case
caption. Petitioner was the plaintiff in the District Court and
respondent in the Court of Appeals. Respondent Cassens
Transport Company is a private business corporation.
ii
TABLE OF CONTENTS
Questions Presented ........... 2c ee eeceeeces i
Parties to the Proceeding
and Corporation Disclosure Statement ...........-. ii
EE eee eee ili
pO Ea a ee Vii
NIE IO nw ce ecw reeves 1
Semberment OF FUTISGICHION 2... ww ce eee 1
Statutory Provisions Involved............-+-++:. 1
ee ee 2
Reasons for Granting the Petition ............... 10
I. Review Is Warranted to Clarify or Enlarge the
Existing Standard for Breach of the Duty of Fair
Representation So That the Right of the Employee
to a Fair and Honest Hearing Is Not Violated, and
So That the Finality Provisions of LMRA, Section
301 Operate as Congress Intended, Thereby
Reducing the Need for the Employee to File a
See ere eee ee 10
iii
II. Respondent Is Not Entitled to a Judgment as a
Matter of Law Because the Sixth Circuit
Applied the Wrong Legal Standard to Review
a Rule 50 Motion by Failing to Even List or
Consider Relevant Facts that Plaintiff
Presented at Trial and Advanced in His Brief
Showing that the Union was Guilty of Bad
Faith, and By Failing to Draw Reasonable
Inferences in Favor of the Non-Moving Party
ee ee eee isu Wwewee en see
III. The Sixth Circuit Decision in Garrison’s Case
Must Be Reversed Because it Applied the
Wrong Legal Standard for Breach of the Duty
of Fair Representation in the Grievance
Process by relying on Airline Pilots Ass’n
Int’l vy. O’Neil, Which Involved the Decision
to Settle a Strike, When it Should have Relied
on Hines v. Anchor Motor Freight, Inc.,
Which Established the Standard for Breach of
the Local Union’s Duty to Represent the
Employee in the Grievance Process ...... 26
I oh ote cet oe ote sated vena canes 30
iV
Appendix
Appendix A
July 7, 2003, Judgment from the 6" Circuit Court
of Appeals, together with text publication ....... la
Appendix B
September 5, 2003, Order of the 6 Circuit
le iat re a rere er eee 3a
Appendix C
August 2, 2001, Amended Judgment of the
Middle District of Tenmesace .... 0. 6 ee ees 3la
Appendix D
Selected portions of the National Master
Automobile Transporters Agreement (NMATA)
for the period of May 22, 1995, thru
MN 24, SORE 6h eee eee eee 34a
Appendix E
Avon Lake Decision of 1992 ............... 43a
Appendix F
Transcript of Testimony given at the grievance
hearing for David Garrison at Dana Point in
POV, T9ee ss + vs Sb kaa eee 50a
Appendix G
Pages 86-89, 189-192, 238-239, 247-250, 393-394,
474-475, 492-493 transcript of the testimony given
in the District Court with respect to testimony by
Jimmy Neal, Bill Nance, Joe Clark and
Bo a errr re 54a
Appendix H
Dana Point Decision of 1996 ............... 77a
Appendix I
Pages 808 to 815 of the July 12, 2001, Transcript.
This consists of the District Court Ruling on
Defendant’s Rule 50 Motion ............... 8la
Appendix J
Illustration of the “Footstool of Integrity” ...... 89a
Appendix K
Negotiating Committee Members of the National
Master Automobile Transporters Agreement
and the Central and Southern Area
supplemental Agreement ..... 0.22 cc cee en’ 93a
Appendix L
Pages 741 to 743, and p. 746 of the July 12,
2001, transcript of the testimony given in the
District Court. This consists of pertinent
er A. fg ok a ee eee ee 10la
Appendix M
Chronological List of conduct constituting bad
faith breach of the duty of fair representation
(DFR) in Garrison v. Cassens ............. 105a
Appendix N
Se 8 err 116a
V1
Appendix O
Decision from the St. Petersburg Committee
Hepmines Of Tameaty, 1995 . 02. cece cee 119a
Appendix P
Hearing Room Diagram
Dana Point California 1996............... 122a
Vii
TABLE OF AUTHORITIES
Cases:
Airline Pilots Association International v. O’Neil
ree are ae 26-30
Ford Motor Co. v. Huffman ;
SGP Gi SPRUE 6 6 er teeter eee ernns 11, 27
Hines v. Anchor Motor Freight, Inc..,
Re re ee rer passim
Humphrey v. Moore
jn ki Me 7). ers are ara 10
Litle v. Household Mfg., Inc.
SPS UD. DUPONT 66 ep tee eters seeeses 25
Reeves v. Sanderson Plumbing Products, Inc.
SO es TEP ne eh bree eee ne sees tes 25
United Steelworkers of America v. American Mfg. Co.,
ee et er ee pe pe eer 10
Vaca v. Sipes
Pe at 0 ee oi eka eee 11, 18
Statutes:
Se ES) ke ol pa eae ee eo 1
Se Ste ES ke ho ee FD Ke Rn ee 1
APs OR acs aie ho ee ee l
Vill
OPINIONS BELOW
The July 7, 2003, Panel Opinion of the United States Sixth
Circuit Court of Appeals is reported at 334 F.3d 528 (6" Cir.
2003), and reprinted at App. 5a - 30a. The Panel reversed the
Entry of Judgment upon the jury verdict. App. 33a.
STATEMENT OF JURISDICTION
The Sixth Circuit denied a timely filed petition for
rehearing on September 5, 2003. App. 2a. Petitioner invokes
this Court’s jurisdiction under 28 U.S.C. § 1254(1).
28 U.S.C. § 2191 provides:
The courts of appeals (other than the United States
Court of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States, the United States
District Court for the District of the Canal Zone, the
District Court of Guam, and the District Court of the
Virgin Islands, except where a direct review may be
had in the Supreme Court. The jurisdiction of the
United States Court of Appeals for the Federal Circuit
shall be limited to the jurisdiction described in sections
1291(c) and (d) and 1295 of this title.
STATUTORY PROVISIONS INVOLVED
Section 301 of LMRA, 29 U.S.C. § 185(a):
(a) Venue, amount, and citizenship
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this 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
ee RS. AS Bias
eee coon en
the amount in controversy or without regard to the
citizenship of the parties.
STATEMENT OF THE CASE
Beginning in 1980, David Garrison was employed as a
Carhaul truck driver in the automobile transportation business
for Auto Convoy, Inc./Allied Systems Limited (“Allied”).
Garrison was a member of Teamsters Local 327 which is
affiliated with the International Brotherhood of Teamsters,
Chauffeurs and Warehousemen and Helpers of America
(IBT). Local 327 is the exclusive bargaining representative.
Local 327 and the employers are signatories to the National |
Master Automobile Transporters Agreement (NMATA) and - |
the Central Southern Area Supplemental Agreement. (“the |
contract”). When disputes arise over the contract, they are |
submitted to the National Automobile Transporters Joint |
Arbitration Committee (“Arbitration Committee”) or the
National Joint Standing Seniority Committee (“National
Seniority Committee”). The contract provides that:
Seniority, including for fringe benefits, shall only be
broken by discharge, voluntary quit, more than a
seven (7) year lay off.... App. 36a.
Routinely automobile manufacturers transfer business
traffic from one signatory company to another. As a result,
Article 5, Section 4 and 5 of the contract address the seniority
issues that arise under these circumstances. In 1992, the
Arbitration Committee issued a decision to Cassens Transport
Company involving the dovetailing of two separate seniority
lists. App. 43a. At the hearing involving both Cassens
Transport Company (“Cassens”) and E & L Transport
Company (E & L), Cassens asked for clarification on a
seniority issue in what has become known as the “Avon Lake
Decision of 1992.” Cassens needed to know how long the
company was obligated to hold seniority for an E & L driver
Reo eters aren eee a anes
who was presently on leave of absence due to an on-the-job
injury. The Arbitration Committee held that the employee on
workers’ compensation who elected to transfer to Cassens was
to be dovetailed with the seniority list:
With regards to the E & L employee on workers’
compensation who has elected to transfer to Cassens,
he is deemed as transferred and will hold seniority at
Avon Lake and will be permitted to assume an active
position upon his release from compensation status.
App. 48a.
Under the contract, decisions by the National Arbitration
Committee are final and binding. App. 39a. Once an
employee’s name is on a seniority list, it doesn’t matter that
the employee is not able to present himself for work.
Seniority is not lost absent discharge, voluntary quit or more
than seven year layoff.
_ In 1994, while Garrison was off work because of a work-
related injury, Nissan Motors took Allied’s traffic and
assigned it to Cassens and/or Commercial Carriers. The
Arbitration Committee held that Article 5, Section 4(c) was
applicable, and accordingly, the Allied drivers were to keep
their terminal seniority and Allied’s seniority list was to be
dovetailed with Cassens and Commercials seniority list at the
Smyrna, Tennessee terminal. App. 7a and 8a. Garrison, and
other drivers working for Allied, were notified that they could
elect to follow the work to either Cassens or Commercial.
Garrison, notified Allied and Local 327 that he elected to
follow the work to Cassens. App. 9a. Garrison’s election to
follow the work to Cassens was acknowledged by Cassens’
terminal manager, Jim Firkus, who signed Garrison’s letter of
election “received” on November 10, 1994. However, Firkus
did not place Garrison’s name on the seniority list as he
should have done as required by the Arbitration Committee
and the Avon Lake Decision of 1992. App. 9a; and 48a.
In January of 1995, Local 327 appeared before the
National Arbitration Committee in St. Petersburg, Florida and
reported that the list of Allied employees who elected to
follow the work to Cassens and Commercial was complete,
and that all names had been dovetailed as ordered by the
Arbitration Committee. App. 5la - 53a. Local 327 was
wrong. Garrison’s name was not on the Cassens’ seniority list
in January of 1995. There were other Local 327 members
who were off work with work-related injuries and their names
were dovetailed with the Cassens’ seniority list. App. 55a -
58a, testimony of Neal; App. 59a - 62a., testimony of Nance.
In June, 1996, Garrison obtained a medical release from
his doctor permitting him to return to work. That day he
contacted Cassens and was told by the assistant terminal
manager that his name was not on the seniority list. He
subsequently spoke to Firkus, the terminal manager, and was
again told that his name was not on the seniority list. Firkus
stated he didn’t remember ever being notified that Garrison
wanted to follow the work to Cassens. Garrison then went to
Nashville, Tennessee and spoke with Jimmy Neal, Local
327's business agent, and David Hodgin, the president of
Local 327. App. 9a and 10a. Neal told Garrison that he
would arrange for a meeting with terminal manager Firkus the
next day so that Garrison could discuss with Firkus his return
to work. The next morning, Neal left Garrison waiting at the
motel for Neal to call him, while Neal met secretively with
Firkus. When Garrison learned that Neal was meeting secretly
with Firkus, he immediately went to Cassens’ terminal. When
he got there, Neal had already left. Upon his return, Firkus
met with Garrison and Neal but would not agree to put
Garrison back to work. App. 70a - 71a, testimony of
Garrison.
The following day, Garrison obtained the letters signed by
Firkus acknowledging Garrison’s election to follow the work
to Cassens. He confronted Firkus. Firkus stated that his
Signature was a forgery. Garrison offered to pay to have the
letter examined by a handwriting expert. Firkus then admitted
that it was his signature on the letter. App. 10a. Garrison filed
a grievance stating that he properly notified Cassens of his
election to follow the work. Neal told Garrison that his case
was a “slam dunk.” App. 10a. In June, 1996, a local hearing
was held in Smyrna, Tennessee. At that time Joe Clark,
Cassens’ labor relations manager, falsely stated that Cassens
was never notified of Garrison’s desire to follow the work,
and that Garrison didn’t have a valid medical release.
Garrison did have a proper medical release and had already
obtained a DOT physical. He drove a tractor-trailer to the
local hearing in Smyrna, Tennessee. App. 64a, testimony of
Garrison.
Garrison’s grievance was referred to the next level of
arbitration and was docketed at the Southern Area Automobile
Transporters Grievance Committee for hearing in August of
1996 in New Orleans, Louisiana. Garrison did not attend this
proceeding because Neal said he would be there to represent
Garrison and that his presence was not necessary. In New
Orleans, Clark, on behalf of Cassens, presented to Neal a new
claim that there was an alleged 30-day rule that caused the
loss of Garrison’s seniority. App. 11a. |
' In the Avon Lake Decision of 1992, the Arbitration Committee
required Cassens to place injured drivers on its dovetailed seniority
list, irrespective of any time requirement. The contract guarantees
that seniority can only be broken by discharge, voluntary quit, or
layoff of more than 7 years. The Arbitration Committee at Avon
Lake in 1992 stated the employee was deemed transferred and
5
After the New Orleans hearing, Neal did not tell Garrison
of Cassens’ new claim that there was an alleged 30-day rule
that caused the loss of his seniority. The case was not
resolved in New Orleans and was docketed for the November
5, 1996 proceeding before the National Seniority Committee
in Dana Point, California. App. 11a, 12a.
In preparing for this final grievance hearing at Dana Point,
California, Garrison focused exclusively on trying to prove
that he notified Cassens of his intentions to follow the work
and that he had a proper medical release. Neal led him to
believe these were the claims Cassens was advancing to deny
him the right to make a living on Cassens’ list. Garrison
forwarded to Neal prior to the Dana Point hearing a 10 page
written statement with 28 exhibits. Neal reviewed the
presentation and told Garrison that it was complete and that it
was the best presentation he had ever seen. Nothing in the
presentation, however, referred to the false 30-day rule Clark
raised two months earlier in the August grievance hearing in
New Orleans, Louisiana. App. 12a. When Garrison arrived
at Dana Point, he met with Neal to discuss the case. Neal had
not conducted any research in Garrison’s behalf. At this point
Neal had not provided Garrison with even one slip of paper to
help Garrison with his case. Neither did Neal share with
Garrison any strategy for his case. Neal withheld from
Garrison Cassens’s new strategy of using a secret 30-day rule
to defeat his grievance, App. 12a., while at the same time
Neal told Garrison that Garrison’s grievance preparation was
complete. Neal led Garrison to believe he had a “slam
dunk”.
would hold his seniority until he recovered and could assume an
active position with Cassens. App. 47a.
6
Fn nnbncnnnmae Lak |
As Garrison and Neal were leaving the hotel at Dana
Point, Clark walked up to Neal in the parking lot of the hotel
and said “Jimmy I got some documents for Garrison’s case.”
Neal took the documents and handed them to Garrison. Neal
said “What do you think, Dave?” Garrison was dumbfounded
that Neal would expect him_to have an opinion about
Committee decisions he had never seen or heard of before. He
didn’t know how they applied to his case. App. 65a - 69a,
testimony of Garrison. Neal said nothing about the false 30-
day rule to Garrison, even after the documents were handed
to him at Dana Point. Garrison later read the Committee
decisions advanced by Clark and felt that none of them
applied to the dovetailing of a seniority list under Article 5,
Section 4(c). Neal did not reveal Cassens’ real motive for
advancing the seven decisions, that it was the 30-day rule
“contained” in the seven decisions which was Cassens’ hidden
agenda. :
When the hearing started at Dana Point, Local 327 went
first. Neal read “the cause” portion of Garrison’s grievance,
which Garrison had prepared, into the record. Garrison then
read his ten page written statement. Garrison’s written
statement, of course, did not address the false 30-day rule.
App. 12a. The employer went next and Clark argued on
behalf of Cassens that Garrison did not comply with the
alleged 30-day rule. Clark handed the National Seniority
Committee members seven written Committee decisions.
Clark testified that Cassens didn’t have any obligation to
Garrison “under the procedures and decisions previously
rendered by the committee.” App. 13a. Clark repeatediy
blamed Local 327 for telling this Committee in January of
1995 that the list was complete. Clark argued that it was the
local union’s fault Garrison’s name was not on the list. App.
Sla - 53a.
a
After Cassens presented its case, Local 327 was.given the
opportunity to rebut Cassens’ case, but Neal completely failed
to say anything coherent. Neal said nothing about what he
knew to be true. Neal didn’t point out that other Local 327
employees who were off on workers’ compensation status did
not lose their seniority after 30 days. Neal failed to say he
knew there was no 30-day rule in the contract that applied to
terminal seniority. Neal let Cassens’ fake 30-day rule go
unchallenged. Garrison tried to put forth the only argument in
his defense by stating that he didn’t believe any 30-day rule
applied, and that his seniority rights were protected under the
contract. App. 12a and 13a.
After Garrison’s attempt at rebuttal, one of the National
Seniority Committee members asked Neal if he had anything
to say on Garrison’s behalf. Neal responded: “No sir, I
don’t, I think you’ve got the case.” App. 13a, 14a. After
Neal’s lame response, Clark, on behalf of Cassens, more
forcefully argued his fake 30-day rule, stating that Garrison
lost all of his terminal seniority rights. Clark falsely claimed
that prior National Seniority Committee decisions involving
this same situation state that employees off work because of
on-the-job injury lose their seniority. Clark never mentioned
the Avon Lake Decision of 1992.” Cassens succeeded with the
Committee because the union presented no evidence or
argument, and had no interest in helping Garrison. Following
the hearing, the National Seniority Committee decided that
Garrison’s terminal seniority was extinguished, holding that
based on prior decisions of the Committee an employee has to
make himself available to work within 30 days or lose his
right to do so. App. 14a. The Committee decision effectively
* The Sixth Circuit concluded that Avon Lake Decision of 1992 was
the only relevant prior Committee decision. App. 14a, 15a.
8
exonerated Local 327 and Cassens of any wrongdoing. App.
79a - 80a.
Garrison brought suit in the District Court against Cassens
for a breach of the collective bargaining agreement, and
against Local 327 for breach of its duty to represent him.
Prior to trial in the District Court, Garrison voluntarily
dismissed Local 327. The case was tried to a jury in what is
commonly called a hybrid 301 action, which requires that
Garrison prove that the employer breached the contract and
that the local union beached its duty of fair representation.
App. 16a. The jury found in favor of Garrison and awarded
Garrison $408,885 in compensatory damages, and allocated
75% of the fault to Cassens. The jury also awarded $500,000
in punitive damages against Cassens. The District Court
denied Cassens’ motion under Rule 50, stating in detail the
evidence which showed Local 327 acted in bad faith and was
arbitrary. App. 81a - 87a. The District Court entered a final
judgment affirming the jury’s'verdict and ordered Garrison to
be reinstated to his employment with Cassens. Cassens
refused to put Garrison back to work and was found in
Contempt by the District Court. Cassens appealed to the
Sixth Circuit. The panel of judges assigned to the case
reversed the District Court, holding that there was insufficient
evidence that the local union’s conduct was arbitrary, but
offered no discussion or opinion as to conduct constituting bad
faith. App. 26a and 27a.
REASONS FOR GRANTING THE PETITION
I. Review is Warranted to Clarify or-Enlarge the Existing
Standard for Breach of the Duty of Fair
Representation so that the Right of the Employee to a
Fair * and Honest‘ Hearing is not Violated, and so that
the Finality Provisions of LMRA, Section 301 Operate
as Congress Intended, Thereby Reducing the Need for
the Employee to File a Federal Lawsuit.
Section 301 of the Labor Management Relations Act,
1947, (LMRA) provides for suit by employees in federal
court for breach of contract. Hines v. Anchor Motor Freight,
Inc. , 424 U.S. 554 (1976). The collective-bargaining contract
at issue contains procedures for the settlement of disputes
through the grievance process. App. 40a. These provisions
are among those which are to be enforced under §301 of the
LMRA. United Steelworkers of America v. American Mfg.
Co.363 U.S. 564, 569 (1960). In the grievance process, the
union may not refuse to press or only perfunctorily press the
individual employee’s claim. Humphrey v. Moore 375 U.S.
335 (1953).Where the union actually utilizes the grievance
process on behalf of the employee, the focus is on whether the
employer breached the contract and whether there is
substantial reason to believe that the union’s breach of duty
contributed to the erroneous outcome of the grievance. The
decision of a final arbitration committee is reviewable and
vulnerable if tainted by a breach of duty on the part of the
union. Hines, at 568.
> “Having the qualities of impartiality and honesty; free from
prejudice, favoritism, and self-interest. Black’s Law Dictionary, 5"
Ed.
* “Free from fraud or deception: legitimate, truthful. Merriam
Webster Dictionary
10
The grievance process cannot be expected to be error free.
There will be occasional mistakes,
“But it is quite another matter to Suggest that
€rroneous arbitration decisions must stand even though
the employee’s representation by the union has been
dishonest, in bad faith, or discriminatory; for in that
event error and injustice of the grossest sort would
multiply. The contractual System would then cease to
qualify as an adequate mechanism to secure individual
redress for damaging failure of the emplo er to abide
by the contract. Congress has put its blessing on
private dispute settlement arrangements provided in
collective-bargaining agreements, but it was
anticipated, we are sure, that the contractual machine
would operate with some minimum levels of
integrity.” Hines, at 571. (Emphasis added by
Petitioner)
The union as Statutory representative of the employee is
always subject to complete good faith and honesty of purpose
in the exercise of its discretion. Id. citing Ford Motor Co. y.
Huffman 345 U.S. 330, 338 (1944). Oversight is necessary
by federal courts in order to prevent arbitrary union conduct
against individuals stripped of traditional forms of redress by
the provisions of federal labor law. Id. citing Vaca v. Sipes,
386 U.S. 171, 182 (1967).
This Court should determine under what circumstances the
individual employee may obtain judicial review of his breach
of contract claim where he has been denied relief to which he
is entitled under the contract after grievance procedures are
exhausted. In our case, the arbitration committee that decided
Garrison’s grievance was the National Seniority Committee.
Its decisions, according to the contract, are final. For this
Court to allow the bar of finality to foreclose employees from
11
asserting their individual claims for breach of contract, there
must be a minimum level of integrity in the grievance process.
Under this Court’s prior decisions that minimum level of
integrity is met where the union’s conduct was not arbitrary,
discriminatory or in bad faith. For over 40 years this test has
been the threshold for removing the bar of finality. The test
is crucial to the effective administration of LMRA as
Congress intended.
The Sixth Circuit’s permutation of this test is not
workable. A focus on “extreme arbitrariness” or “totally
irrational” in the context of a grievance hearing steers the
court away from the goal. The focus must be on the
mechanism used to enforce the contract. Hines at 571. The
present. incarnation of the test needs to be clarified or
expanded to include a review of the process afforded the
grievant in his grievance hearing. Cassens intentionally
breached the contract and Local 327 did nothing to assist the
employee in the grievance. But because the union was
“merely negligent” according to the Sixth Circuit, there was
no breach of the duty of fair representation. Under this
standard, the employer may be guilty of grave misconduct by
intentionally breaching the contract and yet not be responsible
for damaging the employee because the union was not
extremely arbitrary and irrational. Under this test, error and
injustice of the grossest sort is allowed to occur. Without a
fair and honest hearing, there is no way to enforce the
contract and there is no minimum level of integrity in the
process.
In its application of the test for breach of duty of fair
representation, the Sixth Circuit makes much of its view that
union representatives are not strictly held to the standard of
attorneys. This appears to be the law in the Sixth Circuit.
Presumably then the standard in the Sixth Circuit is that union
representatives are held to the standard of a “reasonable
12
man.” Under this standard, a reasonable person representing
an employee in a grievance process could do absolutely
nothing for the employee and be guilty of mere negligence.
A reasonable person, according to the Sixth Circuit, withholds
information needed by the grievant, and is guilty only of an
“error of judgment.” If that truly is the law, then the
standard needs to be modified to focus on the process: Did
Neal take reasonable steps to help Garrison have a fair
hearing? If not, he breached his duty.
The union, as the employee’s exclusive representative, is
responsible to assure a fair and honest hearing. The employee
is barred from wielding power himself in the grievance
process, and must get help from the local union. The
employee, pursuant to the contract, abrogates his individual
rights to represent himself.
Petitioner suggests that the three part test for breach of
duty of fair representation include analysis of whether the
employee gets a fair and honest hearing. A fair and honest
hearing requires at a minimum: (1) that the employee have
access to essential information in the grievance process; (2)
the contractual grievance procedures for the hearing must be
followed; (3) the local union must advocate for the employee.
This test focuses on the process, not magnitude of the blame
for a wrong outcome. Petitioner analogizes this test to a three
legged footstool. When all three legs are in place, the
footstool is balanced and there is a fair and honest hearing,
and the integrity of the process will be maintained. App. 89a -
92a.
The present permutation of this court’s test leads to
injustice where the union’s failure to do anything (mere
negligence?) results in a sham hearing by not assuring there
is a fair and honest process. The phrase “mere negligence”
has come to be a measure of whether the court believes a
13
union actually influenced the outcome. That is a factor, but it
is a separate factor. The test should focus on the union’s duty
to facilitate the process rather than being a defacto inquiry
into whether the merits were decided correctly. The test has
degenerated to the point that union’s and employers believe
the courts will not seriously examine their actions and
decisions. In the real world, the union believes it is free to do
nothing to represent the employee and the employer can
willfully and intentionally breach the contract. Judging by the
Garrison case in the Sixth Circuit, they are correct. Under the
Sixth Circuit’s test, the local union is not even responsible to
give the employee information in its possession that would
help the employee win. Neal didn’t inform Garrison of the
reason advanced against him, or that other injured members
of Local 327 were not held to a 30-day rule.
Cassens was involved in a prior grievance that resulted in
the Avon Lake Decision of 1992. App. 43a. The Committee
decided the exact same issue with respect to Cassens at Avon
Lake in 1992 that arose in Garrison’s situation in 1994. In the
Avon Lake Decision of 1992, the Committee determined that
employees on workers’ compensation status retained their
seniority until they were able to return to work. The Avon
Lake Decision affirms the seniority protection guaranteed in
the contract. In the Avon Lake Decision of 1992, Cassens was
ordered to keep an employee on the seniority list. However,
in 1994 Cassens refused to keep an injured man’s name on the
list: Garrison. Had Neal pointed out the Avon Lake Decision
of 1992 to the National Seniority Committee, the result would
have been different. (Compare 43a, 77a, and 122a) Because
there was not a fair and honest hearing in Garrison’s case in
1996 at Dana Point, the Avon Lake Decision of 1992 was not |
advanced. |
Had the “Footstool of Integrity” (App. 89a) been in place
prior to Garrison’s hearing, he would have had a fair and
14
honest hearing and the minimum standards for a hearing
would have been met. Had Neal shown any interest in
representing Garrison, he could easily have found the Avon
Lake Decision of 1992 after Clark advanced his fake 30-day <a
rule in August, 1996. Garrison should have been informed of
Avon Lake. Had Neal produced the Avon Lake Decision of
1992, the Committee members who decided Avon Lake would
have agreed with Neal that the case was a “slam dunk.” App.
122a.
Both the union and the employer have access to all prior
National Arbitration Committee and National Seniority
Committee Decisions with respect to seniority and other
procedural issues that are essential in the grievance process.
Local 327 members do not have access to prior Committee
decisions. The local union in Garrison’s case showed no
interest in helping Garrison get this information, nor did the
local union pay any attention to the position communicated by
the company for denying Garrison’s grievance. This assured
that Garrison would not have a fair and honest hearing.
Garrison suggests that the union breached its duty of fair
representation when it faiied to utilize or supply Garrison with
necessary information that was in the hands of the local union
(and the employer) and not available to the employee. At a
minimum, this would include the reason Cassens denied his
grievance, the names of other Local 327 members who were
not denied employment based on a fake 30-day rule, and the
Avon Lake Decision of 1992. Garrison did not have a fair
hearing because basic information was withheld from him
prior to and during the hearing.
In order to have a fair and honest hearing, the grievant
must have notice of the charges against him. That is, the
employee is entitled to know the company’s position prior to
the hearing. An employee who is blind-sided at a grievance
hearing is the pre-determined loser because of his lack of
15
a rn a SET Ns
ER Mere ee:
notice. The contract (NMATA) requires that the company
provide notice to the employee as soon as possible of any
Committee decision it plans to use to deny the employee’s
grievance. App. 40a. In August, 1996, two months after
denying Garrison’s initial grievance, Cassens, the employer,
changed its position with respect to why his grievance was
denied. Three months later, In November, 1996, Garrison
was first given notice of Cassens’ new defense/false 30-day
rule. Garrison never learned Cassens claimed a fake 30 day
rule was the basis for denial of his grievance until after Clark
raised the issue in Cassens’ rebuttal to Garrison’s grievance
at the Dana Point, California hearing. App. 67a - 69a.
Garrison therefore did not get a fair hearing because the
contractual grievance procedures were not followed. Not only
did the union representative not object to late notice, the union
representative actually had been informed of the reason for the
denial of Garrison’s grievance three months earlier but said
nothing to Garrison. Garrison was not honestly represented at
the hearing.
In order for the grievant to have a fair and honest hearing,
the union representative must advocate for the employee. The
record at Dana Point clearly establishes that Local 327,
through Jimmy Neal, totally failed to advocate anything on
behalf of Garrison. Neal said “I guess you got the case.” Neal
had no strategy or tactics. Neal said nothing about the clear
language of the contract that protected Garrison’s seniority.
Neal helped negotiate the contract, and yet Neal chose not to
make even a colorable argument in Garrison’s behalf. Neal
could have stood up after Clark advanced the fake 30-day rule
and said: “I know Garrison. He can read. He read the
contract. It guarantees that seniority can only be breken by
discharge, voluntary quit, or more than a seven year lay off.
I helped negotiate the contract language. You cannot deny this
man a right to make a living based on some fake 30-day rule
16
a aa rena aaa ccs anaes ere
that Cassens just made up. It violates the contract. Notice
was never given that employees have 30 days to show up for
work. Other Local 327 members who were off on workers’
compensation status when the list was dovetailed did not lose
their seniority from any fake 30-day rule.” Instead of
providing information in his possession, Neal responded “I
guess you got the case.” Neal did not even provide a
“perfunctory” defense.
By his silence Neal gave a clear message to the National
Seniority Committee: Garrison should lose. Neal’s silence
was heard by the National Seniority Committee. Neal was an
insider. Neal negotiated the contract, and sat on several
National Committees. While at Dana Point, he was a panel
member at other arbitration hearings. Neal’s silence was so
loud the roar was deafening, and the message of that silence
was heard clearly by all the members of the National Seniority
Committee, “Let Garrison lose”. App. 84a-86a. The record
establishes that Garrison had no real advocate; he had no
advocate other than himself at the grievance hearing. He was
inexperienced, alone and crippled by a conspiracy of silence.
Garrison did not have a fair and honest hearing because there
was nobody at the hearing who was willing and able to
advocate his case.
There was no need for Garrison’s case to have gone to a
federal jury trial. Had there been a minimum standard of
integrity in the grievance process Garrison would have
prevailed at a fair and honest hearing. Other members of this
local union did not lose their seniority under the contrived
rule by which Cassens denied Garrison his seniority. Absent
a fair hearing, employees’ rights are decided in secret without
respect for the plain language of the contract and without
regard for prior Committee decisions. Employees have little
choice but to file suit. The lower courts have strayed from the
intent embodied in the test laid down by this Court in Hines.
17
In so doing, the lower courts have abdicated their duty of
oversight and allowed the unions to abdicate their duty of fair
representation. The result has been a concentration of power
in the hands of the unions and employers.
The purpose of hybrid 301 law is to assure the integrity
of the contract and to provide a way in which the employee
who is wronged by breach of contract may be made whole.
If the grievance process lacks integrity, injustice will result.
When injustice results, the employee must seek redress in
federal court. Employees will have to hire lawyers, and
employees are going to have to pay for them. It is almost
impossible to get an attorney fee award in a hybrid 301
action. The litigation is expensive and risky. In the real world
employees are going to have to give up a large percentage of
their recovery for breach of contract in order to retain
counsel. If the case is not resolved in the grievance process,
the best that the employee can hope for is to prevail in a
complicated hybrid 301 action and lose a substantial amount
of his recovery to pay attorneys fees. The companies under
this contract know the real world situation for the employee
and they use the inability to pay attorneys fees to beat down
employees in disputes. Employees can only be made whole if
the grievance process operates as intended under the contract.
A fair and honest hearing is required by contract and by
law. The contract requires that all employees have the right to
have their cases decided “fairly and promptly.” App. 41a. By
contract and by law, the local union is required to do a
minimum of investigation, make an effort to ascertain the
truth of the charges, and to present available evidence
contradicting evidence presented by the company. Hines, at
558 and 571. In processing a grievance, the union can breach
its duty to represent the employee where it handles the
grievance in a perfunctory manner by not gathering sufficient
evidence to prove the case. Vaca v. Sipes, at 194.
18
Because a fair and honest hearing is required by contract
and by law, it is not unreasonable for this court to provide
clarification and some expansion of the test for breach of duty
of fair representation. Additional oversight is needed because
the system is not working as anticipated by this Court. For
over 26 years this Court has believed that the Hines test
provided adequate supervision for the grievance machinery.
This court believed that the requirement for a fair and honest
hearing was being met. Based upon the Sixth Circuit’s
incarnation of the Hines test, this Court is justified in
providing some additional guidance at this time.
Moreover, the implementation of the test recommended by
Petitioner will assure that the legislative effect of the contract
will be brought to bear. The administration of the contract
should not be by litigation; it should be by legislation. LMRA
contemplates that the legislative aspect of the arbitration
process can work where employers, unions and employees
know the law and the basic guidelines for its implementation.
But under present practice, the union is not even providing
information about the rules which interpret the contract. This
case illustrates how-the lack of knowledge leads to increased
litigation and virtually guarantees that the employee will not
be made whole. The Sixth Circuit’s focus on mere negligence
has clouded over the real issue. The truth is,.Neal did not do
anything to affirmatively meet his duty to represent Garrison.
Neal totally failed to advocate, and he served essentially as a
false witness against Garrison. Neal did not divulge
information in his possession when he had a duty to do so.
Garrison did not have a fair and honest hearing.
Had Neal been required to provide information about
Cassens’ position and about prior National Seniority
Committee decisions, Garrison could have been prepared.
Neal and the union totally failed to provide information to
Garrison with respect to the charges against him and with
19
respect to information necessary to prepare for his hearing.
Neal did not assure that Cassens follow contractual
procedures for proper notice. Neal totally failed as an
advocate: he had no ideas, no strategy, and no interest in even
affirming Garrison’s contractual rights. The Sixth Circuit
finds that this is “merely negligence” and therefore not a
breach of the duty to represent Plaintiff. If this Court
determines that the Sixth Circuit’s statement of existing law
is correct, a new standard is needed to protect the arbitral
process from corruption, and to change it from its present
form: an arbitrary process. The new test suggested by
Garrison should result in fair and honest hearings at the
lowest level, where a fair decision can be reached; at the very
least an honest decision will be reached. Employees can be
made whole as required under the contract. The finality
provisions of the collective-bargaining agreement could then
be fairly implemented.
II. Respondent is Not Entitled to a Judgment as a Matter
of Law Because the Sixth Circuit Applied the Wrong
Legal Standard to Review a Rule 50 Motion by Failing
to Even List or Consider Relevant Facts that Garrison
Presented at Trial and Advanced in His Brief Showing
That the Union was Guilty of Bad Faith, and by Failing
to Draw Reasonable Inferences in Favor of the Non-
Moving Party.
The District Court instructed the jury that in order to find
for Garrison it must find that the union breached its duty of
fair representation because its conduct in the grievance was
arbitrary, discriminatory or in bad faith. The jury was given
definitions and examples of arbitrary, discriminatory and bad
faith conduct. App. 102a - 104a. After the jury returned its
special verdict form App. 116a - 118a, Defendant renewed its
Rule 50 motion for judgment as a matter of law. The District
Court reconsidered Defendant’s motion and concluded that the
20
jury could have found that there was bad faith on the part of
the union and that the jury could have found that the union’s
conduct was arbitrary and irrational. Specifically the court
examined Neal’s behavior in the grievance process and Local
327's total failure to advocate for Garrison. Of critical
importance was the evidence that Neal, who had much more
credibility than Garrison, said absolutely nothing before the
National Seniority Committee to support Garrison or that
Garrison’s seniority was protected by the plain language of
the contract. The jury could certainly have found that Neal’s
conduct was motivated by his bad faith desire to avoid blame
himself. The court concluded that it would not be conjecture
for the jury to conclude that the union was guilty of bad faith.
App. 83a.
The Court of Appeals for the Sixth Circuit reversed the
District Court holding that petitioner had not introduced
sufficient evidence under the arbitrary prong but said nothing
about “bad faith”. The Sixth Circuit panel parroted the test:
“a union owes employees a duty to represent them
adequately as well as honestly and in good faith.” App. 19a.
However, the court only analyzed the arbitrary prong of the
union’s duty of representation. Nowhere in the decision is
there any discussion whatsoever of the union’s bad faith or
discriminatory conduct.
BAD FAITH BY LOCAL 327
DAY £iitit*-ooo
Petitioner made a substantial showing that Local 327 acted
in bad faith. That evidence is summarized chronologically in
the Appendix, which lists 17 examples of bad faith by the
union. App. 105a - 115a.
Bad faith in Garrison’s case, as it does in most cases,
revolves around an understanding of the motivation of the bad
actor. The union in Garrison’s case failed to assure that his
name was on the seniority list while he was recuperating from
———
21
lee
his work-related injury in November, 1994. Neal testified to
the National Committee in January, 1995, that the list was
complete. It was not. It did not contain Garrison’s name.
There is no question that the union had a duty to assure that
Garrison’s name was on that list. The problem is compounded
when Local 327 goes to the National Arbitration Committee
in January, 1995 and swears up and down that the list is
complete. The union was to blame for Garrison’s name not
being on the list.
In June of 1996, Garrison returned to work and found that
his name was not on the seniority list. Cassens denied him
employment and lied by stating Cassens was never informed
of Garrison’s election to follow the work. Two months after
the initial grievance hearing at the local level, Cassens
changed its position and stated that Garrison was denied
employment because of the alleged “30-day rule.” The union
was informed of Cassens’ new position in August of 1996, but
Neal never told Garrison that Cassens was advancing this
alleged “30-day rule.” Neal was probably not too excited
about appearing at the upcoming National Committee hearing
at Dana Point in front of the same people that he falsely told
in January, 1995 that the list was complete. The union failed
to assure Garrison’s name was on the list. This failure made
Neal’s union at least partly liable for Garrison’s lost wages
from June, 1996. Cassens’ alleged 30-day rule offered Neal
a way out of this embarrassment and liability for Local 327.
Neal had a motive to see that the secret 30-day rule defeated
Garrison’s grievance.
Neal assured Garrison that he was ready for his grievance
and that Garrison didn’t need to add anything to his
presentation to the National Seniority Committee. Neal said
it was a “slam dunk.” Neal led Garrison to believe he had a
“slam dunk” all the way through the grievance process.
Neal’s statements and subsequent silence were affirmative
22
misrepresentations of fact. It was not mere negligence. Neal
knew that Cassens was advancing its fake 30-day rule. Neal
knew that other employees were not held to a 30-day rule.
Neal knew that the contract protected seniority rights and
Garrison’s circumstances, but he kept all of this to himself.
Neal not only affirmatively misrepresented to Garrison that he
didn’t need. to do anything further to prepare for his
grievance, but Neal also failed to disclose what Local 327
knew about relevant facts essential to Garrison’s case. Neal
was also guilty of misrepresentation by silence. The local
union is at least responsible for what it knows. Under the test
advanced by the Sixth Circuit, the union is not held
responsible for misrepresentation, which is fraud, nor is the
union responsible for refusing to disclose information
necessary to the grievant in the hearing process.
Why did Neal refuse to give information, assistance or
strategy to Garrison? Neal was a professional union
representative who was supposed to act in Garrison’s behalf.
He offered no help. Garrison was left on his own completely
to investigate, apply the contract, and argue his case. This
was true both in the preparation of the grievance and in the
testimony before the National Seniority Committee at Dana
Point in 1996. Neal was virtually mute at that hearing. He
said nothing to assist Garrison or to argue against Cassens’
fake 30-day rule which he knew was not in the contract or
prior Committee decisions. Neal knew this 30-day rule was a
fake and he knew the 30-day rule was not applicable to Article
5, Section 4(c) of NMATA. Neal knew the fake 30-day rule
was never applied to other members of Local 327. It looks
like Neal wanted Garrison to lose.
There is direct evidence of bad faith on the part of the
union based on the transcript from the Dana Point hearing.
At that hearing Joe Clark, on behalf of Cassens, repeatedly
blamed Local 327 for failing to assure that Garrison’s name
23
was placed on the list. Clark pounded away at Local 327 at
the Dana Point hearing because of Local 327’s failure to
check the list prior to Neal reporting to this same Committee
in 1995 that the list was complete. App. 119a - 121a. The
union was guilty. After these accusations were leveled at Neal
and the local union, Neal became incoherent. Neal allowed
the fake 30-day rule to be advanced by Cassens because it
exonerated him and his union of liability and guilt. The union
knew that the contract protected Garrison’s seniority rights.
The Avon Lake Decision of 1992 was the only prior
precedent on point. Neal had an audience that could easily
have been reminded of Avon Lake. App. 122a. Between
August and November, 1996, Neal had four months to
research and find the Avon Lake Decision. Neal had four
months to double check the seniority lists which show that
other Local 327 employees were not subject to Cassens
alleged 30-day rule. But during this four month period, Neal
did nothing. His motives under these circumstances were at
issue. His motives were judged by the jury, but ignored by
the Sixth Circuit. Why did Neal totally fail to advocate for
Garrison when it was obvious that the company was
advancing an outrageous position contrary to the contract and
violative present practice? There are two possibilities: One,
he didn’t know the contract or present practice in the industry
or, two, he wanted Garrison to lose. It is not possible that
Neal failed to realize the seniority rules he helped negotiate.
The jury realized Neal acted in bad faith.
The Sixth Circuit Panel in Garrison’s case totally failed
to consider: (1) the evidence of bad faith presented at trial, (2)
the District Court’s ruling on the Rule 50 motion, (3) the
post-trial motions for new trial, and (4) arguments with
respect to the local union’s bad faith in Plaintiff's brief. In so
doing, the Sixth Circuit failed to follow the law which
requires it to review the evidence. Where the Court of
24
Appeals refuses to consider evidence favorable to the plaintiff
in a Rule 50 Motion, that court commits reversible error.
Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133
(2000). The Sixth Circuit Court of Appeals must be reversed
because it failed to consider the evidence. Garrison argued
from the beginning of trial through briefs filed in the Sixth
Circuit, that Neal’s conduct was motivated by bad faith.
There is evidence that Neal handled the grievance in a
dishonest fashion, and that he was guilty of misrepresentation
and fraud. It is error for the Sixth Circuit to ignore this
evidence and substitute its judgment for the jury. The Court
of Appeals limited its review exclusively to facts relating to
the arbitrary prong of the test. In so doing, the court
apparently looked only at the Respondent’s explanation for the
union’s behavior. The court essentially confined its review to
evidence and inferences favorable to the union and to
Cassens.
ARBITRARY CONDUCT BY LOCAL 327.
ARDILDRNDAE SSO Oem
The question remains, irrespective of the Court of
Appeals’ error in ignoring evidence of bad faith, was
Respondent entitled to a judgment as a matter of law on the
arbitrary prong of the duty of fair representation. Under Rule
50 the court should render judgment as a matter of law where
there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue. Id. at 2109. In
making its determination, the court should draw all reasonable
inference in favor of the non-moving party and it may not
make credibility determinations or weigh the evidence. Id, at
2110; citing Litle v. Household Mfg., Inc., 494 U.S. 545
(1990).
The Court of Appeals failed to draw reasonable inferences
in favor of Petitioner. For instance, Neal’s own testimony
from the transcript of the National Seniority Committee
25
hearing indicated Local 327's guilt for Garrison’s name not
being on the seniority roster. The jury could reasonably infer
that Neal knew at the time of Garrison’s hearing that prior
precedent stated that Garrison’s seniority rights were
protected. The jury could also infer that Neal knew other
Local 327 members were dovetailed with Cassens list even
though they were on injury status and could not show up for
work in 30 days. Neal provided no satisfactory explanation
for his behavior. Neal gave up the seniority of Garrison and
all other drivers, and gained nothing in return, save the
exoneration of Local 327 for failing to get Garrison’s name on
the list. It is not implausible, illogical, internally inconsistent,
nor does it contradict any documentary or other extrinsic
evidence to find that the union acquiesced to Cassens’
intentional misconduct. In concluding that this evidence
overwhelmingly proves that the union was only negligent the
Court of Appeals impermissibly substituted its judgment
concerning the weight of the evidence for the judgment of the
jury.
Ill. The Sixth Circuit Decision in Garrison’s Case
Must Be Reversed Because it Applied the Wrong
Legal Standard for Breach of the Duty of Fair
Representation in the Grievance Process by relying
on Airline Pilots Ass’n Int’l vy. O’Neil, Which
Involved the Decision to Settle a Strike, When it
Should have Relied on Hines v. Anchor Motor
Freight, Inc., Which Established the Standard for
Breach of the Local Union’s Duty to Represent the
Employee in the Grievance Process.
The decision by the Sixth Circuit should be reversed
because the “totally irrational” test from Airline Pilots Ass’n
Int’l vs. O’Neill, 499 U.S. 65 (1991), does not provide the
correct standard for breach of the duty of representation in the
context of the grievance process. Airline Pilots reviewed the
26
union’s duty of fair representation to a class of employees
where the International Union negotiated a back-to-work
agreement terminating a strike. The rationality of the union’s
decision to settle a strike is evaluated in light of the facts and
legal climate that confronted the parties at the time. Id. at 78.
In Airline Pilots, this court looked at the settlement reached
by the union negotiators on behalf of the class, and
determined that it was by no means irrational.
In Garrison’s case, the Sixth Circuit was not reviewing a
back-to-work agreement or the termination of a strike. The
Sixth Circuit was not reviewing the conduct of the
International Union toward a class of members. In Garrison,
the issue was whether the local union breached its duty to one
person, Garrison, in the grievance process. The local union
should be reviewed under the standard in Hines where the
issue was proper representation in a grievance, and not
Airline Pilots, where this Court reviewed the rationality of a
good faith non-discriminatory union decision to end a strike.
Airline Pilots Ass’n Int’l vy. O’Neil, at 78. Understandably,
in that context, as in litigation, even a bad settlement may be
more advantageous in the long run than a good lawsuit. In our
case, Local 327 “resolved” Garrison’s grievance by
sabotaging his case which resulted in a lawsuit.
The language of Airline Pilots suggests that there is more
judicial review of the substance of representation by the union
in a grievance hearing than in the context of a settlement of a
strike. In Airline Pilots the court specifically stated: “Any
substantive examination of the union’s performance,
therefore, must be highly deferential, recognizing the wide
latitude that negotiators need for the effective performance of
their bargaining responsibilities.” Id. at 78 The decision to
settle a strike is accorded the “wide range of reasonableness” .
Id. at 78 citing Ford Motor Company v. Huffman, 345 U.S.,
330, 338.
27
In our case, the decision not to provide Garrison with a
fair hearing was not a labor dispute that was resolved in favor
of avoiding a strike and a lawsuit. There was no competing
interest for Local 327 between Garrison and any other
employee. The question simply for Local 327 was whether or
not it was going to help Garrison.
What is the range of reasonableness that should be
afforded to a union representative who does not provide an
employee with essential information in the grievance process?
The answer is in Hines. where this Court affirmed the
reversal of the trial court because there was evidence that the
local union failed to investigate and assured the employees
they had nothing to worry about. Hines at 560. In Garrison,
there was evidence that the union was guilty of the same
misconduct as in Hines. But the Sixth Circuit claims that as
a matter of law there cannot be a breach of the duty to
represent an individual employee unless the result of the
grievance process is “wholly irrational.” If that is correct,
then Hines is effectively overruled. It is simply not true that
Airline Pilots stands for the proposition that the union’s
representation of an individual employee in a grievance is to
be judged by whether the outcome is “wholly irrational.”
In the process of Garrison’s grievance hearing the union’s
conduct was as follows:
1. The local union assured Garrison that he was ready for
the Dana Point hearing. Neal did no research. Neal had no
strategy. The local union did not even point out the obvious
fact that the clear and unambiguous terms of the contract
protect Garrison’s seniority.
2. Local 327 did not tell Garrison about the defense
advanced by Cassens. Instead, Neal left him in the dark while
telling Garrison his case was a “slam dunk.” Neal did not tell
Garrison about other members of Local 327 who kept their
28
seniority with Cassens irrespective of this fake 30-day rule.
Local 327 provided no advocacy for Garrison.
3. Local Union 327 acted in the opposite fashion of the
union in Airline Pilots where the union acted in good faith to
obtain a settlement that later may not have been more
advantageous in the long run for one class of employees than
a lawsuit. There was no similar “trade off” in Garrison. In
Garrison’s case, the union did nothing to protect Garrison’s
seniority rights or the rights of other employees whose
seniority would later follow Garrison to the gallows of the
false 30-day rule.
The Sixth Circuit Panel holds that this conduct was not
wholly irrational and, therefore, was the result of mere
negligence on the part of Neal. So, the argument goes,
employees must live with an unjust result caused by the
union’s malfeasance without any remedy for damages.
According to the Sixth Circuit in Garrison’s case, as a matter
of law it is merely negligent for a union representative to
decide not to tell an employee the reason the company was
advancing to defeat his grievance.
Neal’s choice was: “Should I say something for Garrison
or let him lose at the Dana Point hearing in November of
1996?” Neal decided to say nothing. Neal’s silence spoke
volumes to the National Seniority Committee. There is no
way to construe that conduct as rational. In light of the
contract, which Neal knew well because he had negotiated it,
and the fact that other Local 327 members had not lost their
seniority because of Cassens’ contrived thirty (30) day rule,
Neal’s silence before the National Seniority Committee
amounts to a conscious decision that Garrison would lose his
grievance. That decision is unlike the conscious decision to
end a strike. It is not useful or practical to evaluate the
29
outcome in Garrison’s case under the “wholly irrational”
standard established in Airline Pilots Ass’n Int’l v. O'Neil.
CONCLUSION
This Court should reverse the Sixth Circuit Court of
Appeals’ decision because it misapplied the legal standard for
a union’s breach of its duty to represent an employee as
described in Hines v. Anchor Motor Freight, Inc. This Court
could also reverse the Sixth Circuit because it failed to apply
the correct legal standard for a review of a Rule 50 motion.
Lastly, Petitioner respectfully requests that this Court
reconsider the parameters of the union’s duty to represent an
employee in a grievance. Is it implicit in the union’s duty to
represent the employee that he receive a fair and honest
hearing?
Garrison, and all other employees under this contract,
need this Court’s relief. Garrison is entitled to review by this
Court because the standard announced by the Sixth Circuit
results in a process that lacks even a minimum level of
integrity. As this Court so eloquently described in Hines:
Congress has put its blessing on private dispute
settlement arrangements provided in _ collective-
bargaining agreements, but it was anticipated, we are
sure, that the contractual machine would operate with
some minimum levels of integrity.” Hines, at 571.
Respectfully submitted,
DAVID J. MOEN
Moen & Valentine, LLC
613 East McCarty Street
Jefferson City, MO 65101
573-636-5997
Counsel for Petitioner
30
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-6056/02-5124
[Filed September 5, 2003]
DAVID L. GARRISON,
Plaintiff-Appellee,
¥.
CASSENS TRANSPORT COMPANY,
Defendant-Appellant.
ee A a a a :
BEFORE: BOGGS and SILER, Circuit Judges; and STEEH,*
District Judge.
ORDER
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a vote
Hon. George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.
la
2a
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the
cases. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-6056; 02-5124
[Filed July 7, 2003]
David L. Garrison,
Plaintiff-Appellee,
Vv.
Nee eee Se”
\
Cassens Transport Company,
Defendant-Appellant.
i a
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville
No. 98-00415
Aleta A. Trauger, District Judge
Before: BOGGS and SILER, Circuit Judges; STEEH, District
. Judge.
JUDGMENT
THIS CAUSE was heard on the record from the district
court was argued by counsel.
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3
H
‘
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IN CONSIDERATION WHEREOF, it is ORDERED that
in Case No. 01-6056 the jury verdict is REVERSED and the
case is REMANDED for entry of judgment as a matter of law
for defendant Cassens Transport Company. IT IS FURTHER
ORDERED that in Case No. 02-5124 the district court’s
contempt order is REVERSED and VACATED in its entirety.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
Sa
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 01-6056; 02-5124
[Filed July 7, 2003]
David L. Garrison, )
Plaintiff-Appellee, )
)
v. )
)
Cassens Transport Company, )
Defendant-Appellant. )
)
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville
No. 98-00415
Aleta A. Trauger, District Judge
Before: BOGGS and SILER, Circuit Judges; STEEH, District
Judge."
OPINION
SILER, Circuit Judge. In No. 01-6056, defendant Cassens
Transport Company (“Cassens”) appeals the judgment after
a jury verdict in favor of plaintiff David L. Garrison in this
hybrid § 301 (29 U.S.C. § 185) breach of contract/fair
” The Honorable George Caram Steeh, United States District Judge
for the Eastern District of Michigan, sitting by designation.
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representation suit. In No. 02-5124, Cassens appeals the order
by the district court holding it in civil contempt for failure to:
immediately reinstate Garrison to employment; make certain
pension payments; and assign a “company seniority” date that
corresponds with the date that Garrison could have
commenced working for Cassens upon his return from his
worker’s compensation injury. Numerous issues have been
raised on appeal. After carefully reviewing the record, and
viewing the evidence in the light most favorable to Garrison,
we find that the evidence at trial was insufficient to establish
a breach of the duty of fair representation by the union.
Accordingly, the district court erred in not entering judgment
in favor of Cassens pursuant to Rule 50 of the Federal Rules
of Civil Procedure. Also, because there was no basis for the
imposition of liability, we necessarily find that the civil
contempt order can no longer stand. Therefore, we
REVERSE the jury verdict and REMAND to the district
court for the entry of judgment as a matter of law for Cassens.
Also, the civil contempt order of January 7, 2002, is
REVERSED and VACATED in its entirety.
I. BACKGROUND
Garrison began his employment as a driver with Allied
Systems, Ltd. (“Allied”) and/or its predecessor, Auto
Convey, Inc., in 1980. Allied is a trucking company engaged
in the auto transport business. In 1986, Garrison transferred
to Allied’s Smyrna, Tennessee, terminal, where he was
employed as a driver until November 21, 1990, when he
Sustained an on-the-job injury. Cassens is also a trucking
company engaged in the delivery of automobiles to vehicle
dealerships in the United States. Since 1983, Cassens has
maintained an operation in Smyrna, Tennessee.
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Drivers for Allied and Cassens are members of Teamsters
Local 327, which is affiliated with the Internal Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America AFL-CIO. Local 327 is the exclusive bargaining
representative of Allied and Cassens drivers for collective
bargaining purposes. Allied, Cassens, and Local 327 are
signatories to a multi-employer, multi-union collective
bargaining agreement referred to as the National Master
Automobile Transporters Agreement (“NMATA”) and the
Central-Southern Areas Supplemental Agreement. NMATA
governs the terms and conditions of driver employment with
these companies. While employed by Allied as a driver at the
Smyrna terminal, Garrison was a member of Local 327 and
was covered by NMATA.
At all times relevant to this case, Nissan Motors had an
assembly plant located near Allied’s and Cassens’s Smyrna
operations. In September 1994, as a result of a competitive
bid process, Nissan awarded Cassens and another trucking
company, Commercial Carriers, Inc., its Smyrna transport
work, which previously had been performed by Allied.
Shortly thereafter, Allied notified all Allied employees
working out of the Smyrna terminal, including Garrison, of
Nissan’s decision to transfer its work to Cassens and
Commercial Carriers. A memorandum was sent enclosing a
form on which drivers could designate whether they wished
to follow the work to Cassens or Commercial Carriers or stay
with Allied and seek work at another terminal.
As a result of Nissan’s decision to transfer its work,
Allied, Cassens, Commercial Carriers, and Local 327
submitted a request to the National Joint Arbitration
Committee (the “NJAC”) for a determination of the seniority
rights of Allied employees affected by the work transfer. The
NJAC issued its decision, ruling that pursuant to NMATA,
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Allied drivers had the right to transfer either to Cassens or
Commercial Carriers to follow the Nissan work. Regarding
seniority rights, the NJAC stated that Allied’s seniority list
was “to be dovetailed" by terminal seniority’ with the Cassens
and Commercial [Carriers] Smyrna Seniority Lists.”
As required by the NJAC’s decision, Allied was
responsible for preparing separate lists of Allied drivers
seeking to transfer to Cassens and Commercial Carriers.
After the NJAC decision, Garrison, who was still off work,
received two letters from Allied. The first advised Garrison
of his work options and stated that if he did not choose to
follow the work to Cassens or Commercial Carriers he would
be laid off from Allied, effective several days later. The
second letter was a premature layoff notice.
The next day after receiving these letters, Garrison
telephoned Allied’s terminal manager and advised him that he
wanted to follow the work to Cassens. In two follow-up
letters dated November 9, 1994, Garrison confirmed his
' Under NMATA, Art. 5, § 1 “‘Dovetail seniority’ is a term that
is applied when two (2) or more seniority lists are merged or
combined with a single seniority list which recognizes the terminal
seniority date of each employee. The list is arranged by terminal
seniority date with the most senior employeg at the top.”
2 NMATA recognizes two different types of seniority: company
seniority and terminal seniority. “‘Company seniority’ is a term
that is applied to an employee’s date of hire by the Employer.” Art.
5, § 1 “‘Terminal Seniority’ is a term that is applied to the
employee’s most recent date of employment at a specific terminal.”
Id. “‘Terminal’ is a term that is applied to any facility of an
Employer to which employees are assigned to work whether called
a branch, terminal division or operation.” Jd.
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receipt of Allied’s letters and restated his intentions to follow
the work to Cassens. Garrison copied the letters to the
business agent for Local 327. Garrison’s letters were both
signed “Received” by James Firkus, Cassens’s Smyrna
terminal manger. Several days later, Garrison received notice
from Allied that based upon his decision to transfer to
Cassens, his name was being removed from Allied’s seniority
list. He was never informed that he would be required to
report to work within thirty days of his notification election.
On June 7, 1996, approximately nineteen months after
Garrison submitted his transfer election forms, he obtained a
medical release from his doctor permitting him to return to
work. That same day, he contacted Cassens inquiring into
when he could begin work. The assistant terminal manager at
Cassens’s Smyrna terminal informed Garrison that his name
did not appear on Cassens’s Smyrna seniority roster and that
he would need to speak with Firkus, who was on vacation.
Several days later, Garrison spoke with Firkus, who stated
that Garrison was not on Cassens’s applicable seniority list
and that it would be necessary to contact Cassens’s Labor
Relations Director, Joe Clark, to discuss the situation.
Garrison then went to the Local 327 office in Nashville,
Tennessee, and met with J immy Neal, Local 327’s business
* Garrison also wrote a separate letter to Local 327's now former
business agent, George Barlow, informing him that he wanted to
follow the work to Cassens and that he had notified Allied of this
preference. In that letter, Garrison specifically asked Barlow to
follow up his request to work for Cassens and to make sure that his
name was placed on the seniority list at Cassens.
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agent,’ and David Hodgin, the president of Local 327, to
discuss his predicament. After discussing the situation, Neal
expressed his view that Garrison’s case was a “slam dunk.”
He provided Garrison with a form so that he could prepare a
grievance to be submitted to Cassens. Neal also arranged an
informal meeting to be held the following day to discuss
Garrison’s request to return to work.
The next day, an informal meeting was held at Cassens’s
Smyrna terminal between Garrison, Neal, Firkus, and Mark
Flett, a union steward for Cassens’s employees. Firkus would
not agree to put Garrison to work. According to Garrison,
Firkus indicated that the problem was that Garrison had never
been placed on the seniority list back in 1994. The next day,
Garrison discovered that Firkus had signed for the
employment notification letters he sent in November 1994.
That afternoon, he confronted Firkus about his signatures.
Initially, Firkus indicated that he believed the signatures were
forgeries. Subsequently, he admitted it was his signature on
each of the letters.
Less than a week later, Garrison submitted a grievance to
Local 327, outlining his position that he had properly notified
Cassens of his preference to follow the Nissan work. A local
hearing was then held concerning Garrison’s grievance at
Cassens’s Smyrna terminal. At the hearing, Neal, who was
Garrison’s union representative, asserted that Garrison should
be permitted to work for Cassens and should be placed on
Cassens’s seniority list with a 1994 seniority date. Cassens
took the position that it was unaware that Garrison had elected
to transfer to Cassens, that his name had not appeared on any
* In January 1995, Neal replaced Barlow as Local 327’s business
agent.
lla
of the seniority lists or the transfer lists that had been
provided by Allied, and that Cassens did not have a
contractual obligation to employ him.°
The parties’ inability to reach an acceptable resolution to
Garrison’s grievance resulted in the matter’s being submitted
for arbitration. Neal docketed the grievance with the Southern
Area Automobile Transporters Grievance Committee to be
addressed at its August 1996 meeting in New Orleans,
Louisiana. At Neal’s recommendation, Garrison did not
attend this proceeding, although Neal was present on his
behalf.° During the proceeding, Cassens, through its
representative, Joe Clark, reasserted its position that it did not
have a contractual obligation to Garrison. In addition, for the
first time, Cassens invoked a “30-day rule” and argued that
Garrison’s seniority transfer opportunity had expired because
he had not reported to work at Cassens within thirty days of
the transfer opportunity. At the conclusion of the proceeding,
Garrison’s case was referred to the National Joint Standing
Seniority Committee (the “NJSSC”) in Dana Point,
California. It appears that at no point after the Southern Area
proceeding did Neal inform Garrison that Cassens had raised
the defense of the thirty-day rule. It is this somewhat obscure
rule that serves as the driving force behind this litigation.
° At trial, Garrison’s theory for Cassens’s refusal to hire him was
that Cassens did not want someone on the payroll who had suffered
serious back injuries because of the risk of future worker’s
compensation claims.
° Neal told Garrison that nothing substantive would happen at the
Southern Area proceeding and that his grievance would be
scheduled to be heard by the National Joint Standing Seniority
Commitiee in California.
q
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Garrison’s grievance was ultimately scheduled to be heard
on November 5, 1996. In preparing for this proceeding,
Garrison and Neal kept in constant contact. They had several
meetings and spoke on the phone almost every day. During
this preparation stage, Garrison focused exclusively on trying
to prove that he properly notified Cassens of his intentions to
follow the Nissan work. Ultimately, Garrison forwarded to
Neal a ten-page, ninety-seven paragraph typed presentation
with twenty-eight exhibits for the upcoming arbitration. Neal
reviewed the presentation and thought that it was one of the
best he had ever seen.
Approximately forty-eight hours before the proceeding,
Neal, Garrison, and Clark met to exchange documents and
information. Garrison gave Clark a cony of his presentation
and Clark gave Neal and Garrison seven prior joint arbitration
committee decisions that he intended to use in support of
Cassens’s thirty-day defense. This appears to be the first time
that Garrison was made aware of the existence of a thirty-day
rule. Garrison and Neal reviewed these decisions and decided
that they were not applicable or were distinguishable from the
circumstances involved in the instant matter. Neal failed,
however, to realize or explain the potential significance the
thirty-day rule could have on Garrison’s grievance.
Consequently, no rebuttal--either by Neal or Garrison--was
prepared on the issue of the thirty-day rule.
In presenting Garrison’s grievance to the NJSSC, Neal
introduced Garrison to the committee and read Garrison’s
grievance into the record. Garrison read a prepared statement
and introduced exhibits in support of his case. Neither Neal
nor Garrison made any mention or otherwise tried to obviate
any argument regarding the thirty-day rule. On Cassens’s
behalf, Clark argued that (1) Cassens had not been notified of
Garrison’s intent to transfer from Allied to Cassens; (2)
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Garrison had never appeared on a Cassens seniority list; (3)
Cassens did not have any contractual obligation to Garrison;
and (4) Garrison did not comply with the thirty-day rule when
he appeared for work in 1996. Clark handed committee
members copies of arbitral precedent that he believed
supported Cassens’s position that “a man has thirty days from
the date of the transfer [in] which he must make himself
available.” Although he did not refer to any of these cases by
name, he asserted that Cassens did not believe that it had any
obligations to Garrison “under the procedures and decisions
previously rendered by the Committee.” Other than these
brief statements and the submission of the prior committee
decisions, Clark did not initially make any other arguments
regarding the applicability of the thirty-day rule to Garrison’s
case.
Although Local 327 was free to rebut any aspect of
Cassens’s case, it appears that Neal completely failed to
address the applicability of the thirty-day rule.’ Garrison
himself, however, put forth some rebuttal to Cassens’s thirty-
day rule argument, stating that “I did not believe the thirty
(30)-day report rule . . . is applicable, because you will find
[that] in NMATA . . . seniority shall not be broken except by
discharge, voluntary quit, [or more than a seven (7)-year
layoff].” After Garrison’s rebuttal, one of the members of the
committee asked Neal whether he had anything further to add
and Neal responded, “No, sir. I don’t. I think you got the
” Cassens argues that Neal responded to the thirty-day reporting
rule but alleges that the tape did not pick up all of the Neal’s
comments as reflected by the gap (--) noted in the transcription. We
concur with the district court’s view that this argument is
unpersuasive guesswork on Cassens’s part. It is just as likely that
the gap noted in the transcription signifies a pause in Neal’s rebuttal
as Neal was attempting to gather his thoughts.
gS
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case.” In his final response, Clark more forcefully fleshed out
Cassens’s position on the applicability of the thirty-day rule:
Mr. Garrison . . . could not report in thirty (30) days
or any relevant time period. You’re looking at almost
two (2) years before he could report to us -- that has
not been the decisions that have been rendered by this
Committee and other committees. Specifically, if you
go to the decisions that I handed out to you. . . [one
decision] involves the very same local, Local 327. The
discussion specifically talks about being able to report
in thirty (30) days of the transfer. It’s just one of the
seven (7) that I gave you. Again, it specifically relates
to the grievant in that particular case being on an on-
the-job injury and could not report. The very same
thing that we have here, gentleman. Mr. Garrison
cites to you the language in the contract about
seniority. We’re not trying to break his seniority. All
we’re saying is Mr. Garrison does not belong on our
seniority list, again, for all the reasons we cited to
you.
Following this hearing, the NJSSC issued its decision
denying Garrison’s request for employment with Cassens. The
committee held for Garrison on the notice issue. Specifically,
it found that Garrison made a timely request to Cassens for
employment and that this request was acknowledged by
Cassens’s terminal manager. The NJSSC found, however, that
“[p]rior decisions of this Committee require that employees
who follow their work . . . make themselves available for
work within thirty days after expressing their desire to do
so.” Because Garrison was not available to work for Cassens
during the applicable thirty-day period, the NJSSC found that
his transfer rights were extinguished. Thus, the thirty-day rule
ultimately proved dispositive of Garrison’s grievance.
papier ee Seana nes ae ae ee
———————————————_——————— |
PR ie abt
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Although the committee relied on the seven arbitral
precedents submitted by Cassens in reaching its conclusion,
none of the decisions specifically involved the dovetailing of
seniority rights; instead, all of the cases involved attempted
in-company transfers to either new terminals, new jobs, or
other terminals with new work opportunities.
The one apparent NJSSC decision that presented a
strikingly similar issue as that involved in Garrison’s case was
not brought to the committee’s attention. In May 1992,
Cassens previously asked the NJSSC for guidance “as to how
long [Cassens] is obligated to afford work at the Avon Lake
facility to an E&L Lorain driver presently on a leave of
absence due to an on-the-job injury.” Cassens Transp. Co. v.
Local Union No. 571 and E&L Transp. Co. Local Union 964,
No. 5-92-(2-92)-465-A. The NJSSC determined that “[w]ith
regard to the E&L employee on workers’ compensation who
has elected to transfer to Cassens, he is to be deemed as
transferred and will hold seniority at Avon Lake and will be
permitted to assume an active position upon his release from
compensation status.” /d. In light of this holding, it may have
been difficult for the committee to distinguish Garrison’s
situation from its earlier precedent.
Thereafter, Garrison initiated a federal action under § 301
of the Labor Management Relations Act, 29 U.S.C. § 185,
against Cassens, Local 327, and others. All defendants except
Cassens and Local 327 were dismissed from the lawsuit.
Following a settlement agreement, Local 327 was voluntarily
dismissed from the suit. Thereafter, the hybrid action
continued solely against Cassens. The case then proceeded to
trial. At the conclusion of Garrison’s case in chief and again
at the close of trial, Cassens moved for judgment as a matter
of law pursuant to Rule 50 of the Federal Rules of Civil
Procedure. The court denied the motion and submitted the
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case to the jury. The jury found in favor of Garrison and
awarded $408,885 in compensatory damages, allocating
seventy-five percent of liability to Cassens and twenty-five
percent to Local 327. It also awarded $500,000 in punitive
damages against Cassens. Thereafter, Cassens renewed its
Rule 50 motion, which was again denied by the court.
Cassens then moved for a new trial under Rule 59 of the
Federal Rules of Civil Procedure, which was also denied.
In case No. 01-6056, Cassens argues that the district court
erred in: (1) denying its pretrial motion for summary
judgment; (2) denying its motion for judgment as a matter of
law pursuant to Federal Rule 50; (3) refusing to instruct the
jury on its defense that a particular section of NMATA must
be considered in determining whether Cassens breached the
collective bargaining agreement; (4) affirming the
compensatory award when the record established that
Garrison failed to mitigate damages; (5) affirming the jury’s
allocation of liability; and (6) upholding an award of $500,000
in punitive damages.
The district court erred in denying Cassens’s motion for
judgment as a matter of law under Federal Rule of Civil
Procedure 50. Consequently, we need not decide the many
other assignments of error raised by Cassens on appeal, which
have all been rendered moot. Also, because a remedial
contempt order cannot survive the reversal of the underlying
order giving raise to the contempt judgment, we reverse and
vacate the district court’s order in case No. 02-5124.
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II. ANALYSIS
A. Denial of Summary Judgment
Cassens argues at length that the district court erred in
denying its motion for summary judgment and reconsideration
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
However, “where summary judgment is denied and the
movant subsequently loses after a full trial on the merits, the
denial of summary judgment may not be appealed.” Jarrett v.
Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990); see also K&T
Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 174 (6th Cir.
1996) (holding that “in cases where an appellant made a Rule
56 motion for summary judgment that was denied, makes
those same arguments in a Rule 50(a) motion at the close of
evidence that was also denied, lost in front of a jury, then
renewed its arguments in a rejected Rule 50(b) motion after
the entry of judgment, we will review only the denial of the
Rule 50(b) motion”). Accordingly, because there has been a
trial on the merits, we will not review the district court’s
denial of summary judgment.
B. Motion for Judgment as a Matter of Law
Cassens moved for judgment as a matter of law pursuant
to Rule 50 at the conclusion of Garrison’s case in chief, at the
end of trial and again after the jury’s verdict. On appeal, it
argues that the evidence at trial was insufficient to support the
jury’s finding that (1) Local 327 breached its duty of fair
representation, (2) any alleged breach by the union more than
likely adversely impacted the grievance process, and
(3) Cassens breached the collective bargaining agreement.
“An appeals court reviews a deniai of a Rule 50(b) motion de
novo, applying the same test as the district court must apply.”
Gray v. Toshiba Am. Consumer Prods. , 263 F.3d 595, 598
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(6th Cir. 2001). “We do not weigh the evidence, evaluate the
credibility of the witnesses, or substitute our judgment for that
of the jury.” Wehr v. Ryan’s Family Steakhouses, Inc., 49
F.3d 1150, 1152 (6th Cir. 1995). “Instead, we must view the
evidence in the light most favorable to the party age nst whom
the motion is made, and give that party the benefit of all
reasonable inferences.” Phelps v. Yale Sec. Inc., 986 F.2d
1020, 1023 (6th Cir.), cert. denied, 510 U.S. 861 (1993).
“The motion should be granted, and the district court
reversed, only if reasonable minds could not come to a
conclusion other than one favoring the movant.” K&T Enters.
Inc., 97 F.3d at 176.
In the instant case, following the jury’s verdict, the district
court stated that it was both “dumbfounded” and “surprised”
by the result. While ruling from the bench, the court
suggested that it disagreed with the verdict; however,~it
explained that “the law really doesn’t favor setting aside a
jury verdict . . . certainly not because the judge disagrees
with the verdict.” Our careful review of the extensive
appellate record convinces us that the evidence presented to
the jury was insufficient to support a finding of liability on the
issue of Local 327’s breach of its duty of fair representation.
1. Elements of a Hybrid § 301 Action
“A hybrid section 30] action involves two constituent
claims: breach of a collective bargaining agreement by the
employer and breach of the duty of fair representation by the
union.” Black v. Ryder/P.I.E. Nationwide, Inc. , 15 F.3d 573,
583 (6th Cir. 1994) (citation omitted). The two claims are
“inextricably interdependent.” DelCostello v. Teamsters , 462
U.S. 151, 164, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983)
(internal quotation marks and citation omitted). Unless a
plaintiff “demonstrates both violations, he cannot succeed
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against either party.”* Bagsby v. Lewis Bros. Inc. of Tenn.,
820 F.2d 799, 801 (6th Cir. 1987) (emphasis omitted). In
order to prove a breach of the duty of fair representation, an
employee must demonstrate that the union’s actions or
omissions during the grievance process were arbitrary,
discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171,
190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Each of these
wrongs is mutually independent, meaning, that “the three
named factors are three separate and distinct possible routes
by which a union may be found to have breached its duty.”
Black, 15 F.3d at 584. “Actions for a union’s breach of its
duty of fair representation depend for their rationale on the
union’s otherwise-complete control over the handling of an
employee’s grievance.” Jd. “Just as . . . fiduciaries owe their
beneficiaries-a duty of care as well as duty of loyalty, a union ~
owes employees a duty to represent them adequately as well
as honestly and in good faith.” Air Line Pilots Ass’n Int’l v.
O'Neill, 499 U.S. 65, 75, 113 L. Ed. 2d 51, 111 S. Ct. 1127
(1991) (citations omitted). There is no requirement, however,
that the grievance process be “error-free.” Hines v. Anchor
Motor Freight, Inc. , 424 U.S. 554, 571, 47 L. Ed. 2d 231, 96
S. Ct. 1048 (1976).
With regard to the arbitrary prong, “a union’s actions are
arbitrary only if, in light of the factual and legal landscape at
the time of the union’s actions, the union’s behavior is so far
outside a ‘wide range of reasonableness’ as to be irrational.”
O’Neill, 499 U.S. at 67 (citation omitted). Mere negligence
® It is of no consequence that Garrison has already settled with
Local 327. In a hybrid § 301 suit, an “employee may, if he
chooses, sue one defendant and not the other; but the case he must
prove is the same whether he sues one, the other, or both.”
DelCostello, 462 U.S. at 165.
~
20a
on the part ofa union does not satisfy this requirement.
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-
73, 376, 109 L. Ed. 2d 362, 110 S. Ct. 1904 (1990).
Moreover, ordinary mistakes, errors, or flaws in judgment
also will not suffice. See Walk v. P*/*E* Nationwide, Inc.,
958 F.2d 1323, 1326 (6th Cir. 1992) (citations omitted). That
is, “an unwise or even an unconsidered decision by the union
is not necessarily an irrational decision.” /d. In essence then,
to prevail, a plaintiff has the difficult task of showing that the
union’s actions were “wholly irrational.” O’Neill, 499 U.S.
at 78. The “wholly irrational” standard is described in terms
of “extreme arbitrariness.” Black, 15 F.3d at 585 (“[T]he
relevant issue in assessing a Union’s judgment is not whether
it acted incorrectly, but whether it acted in bad faith, or
extremely arbitrarily, or discriminatorily.”)(internal quotation
marks and citation omitted).
When reviewing a union representative’s actions or
Omissions, we must never lose sight of the fact that union
agents are not lawyers, and as a general proposition, cannot
be held to the same standard as that of licensed professionals.
See Schoonover v. Consol. Freightways Corp., 147 F.3d 492,
497 (6th Cir. 1998) (Kennedy, J., dissenting) (“[U]nion
representatives are not lawyers. They do not have the
advantage of discovery procedures.”), cert. denied, 525 U.S.
1139 (1999): Poole v. Budd Co. , 706 F.2d 181, 185 (6th Cir.
1983) (“Union representatives are not to be strictly held to the
standards of attorneys.”) (citation omitted). This observation
is simply a restatement of the well-established legal
understanding that: “[o]nly those important or tactical
decisions made by a union official at arbitration that exhibit
arbitrary or discriminatory conduct, or actions taken in bad
faith, constitute breach of a duty of fair representation.”
Walk, 958 F.2d at 1326-27 (citation omitted).
NI BECO LR a EM LEE OD Ge UT WE a
2la
Once an employee successfully demonstrates that the
union acted contrary to its legal duty, the employee must then
show that the union’s actions or omissions “tainted the
grievance procedure such that the outcome was more than
likely affected by the Union’s breach.” Dushaw v. Roadway
Express, Inc., 66 F.3d 129, 132 (6th Cir. 1995) (citation
omitted). The impact of the union’s breach must be substantial
such that the #laintiff “must meet the onerous burden of
proving that the grievance process was ‘seriously flawed by
the union’s breach. . . .’” Black, 15 F.3d at 585 (quoting
Hines, 424 U.S. at 570).
a. Union’s Breach of its Duty of Fair
Representation
Garrison’s allegation of breach against Local 327 can be
separated into two categories: (1) those actions concerning the
failure to ensure that Cassens was notified of Garrison’s intent
to follow the Nissan work, and (2) those actions concerning
the failure to prepare for and challenge Cassens’s argument as
to the thirty-day reporting rule. The first category cannot give
rise to liability.” Accordingly, our focus shifts to the second.
Garrison primarily points to three errors in the union’s
handling of the issue of the thirty-day rule to support a finding
of arbitrary conduct. First, he argues that it was arbitrary
conduct for Neal not to notify Garrison that Cassens had
raised a new defense a the August 1996 proceeding in New
Orleans. Second, Garrison maintains that Neal’s failure to
” Garrison prevailed on this issue before the NJSSC and hence any
alleged breach could not have tainted the committee’s decision. As
the NJSSC found, “Mr. Garrison made a timely request for
employment consistent with this Committee’s prior decision . . .
and this request was acknowledged by Cassens’s terminal manager,
[Firkus].”
22a
prepare a rebuttal in anticipation of Cassens’s thirty-day rule
defense amounted to arbitrary conduct. Last, he argues that it
was also arbitrary behavior for Neal not to argue against the
applicability of the arbitral precedent relied on by Cassens at
the NJSSC proceeding in California. Although Neal acted
with less than full professionalism, there was insufficient
evidence from which the jury could conclude that his errors
rose to the level of “extreme arbitrariness.”
Neal first learned of the thirty-day rule at the New Orleans
proceeding when Cassens invoked the rule as an affirmative
defense to defeat Garrison’s grievance. It is undisputed that
prior to this hearing, and during his relatively short tenure
(i.e., twenty months) as Local 327’s business agent, Neal had
never dealt with, or otherwise been made aware of, the little-
known thirty-day rule. As Garrison himself concedes, the
thirty-day “rule was one [Neal] had never heard of in all of
his years with the union.” Garrison also recognizes that at the
time of his grievance proceedings, the thirty-day rule was
rarely invoked and even more rarely relied on as a basis to
defeat a grievance. For instance, Garrison repeatedly and
boldly emphasizes that he “is the only employee in the sixty-
year history of car haul who ever lost his right to be on a
seniority [list] because he didn’t show up within thirty days.”
Given the relative obscurity and deceptive unimportance of
the thirty-day rule, Neal’s oversight in not relaying this
defense to Garrison did not amount to arbitrary conduct; at
worst, the error was negligence.'° Cf. Walk, 958 F.2d at 1329
(explaining that a union agent’s failure to investigate
'° At trial, Neal testified that he simply did not recall the thirty-day
rule argument being advanced by Cassens at the New Orleans
proceeding. The record indicates that at times, Neal has been in
charge of sixty to seventy grievances a month.
23a
adequately a grievant’s case before submission to arbitration
was negligent, but not in and of itself arbitrary); Olsen v.
United Parcel Serv. , 892 F.2d 1290, 1295-96 (7th Cir. 1990)
(“While we can imagine situations in which a union’s failure
to investigate might constitute substantial evidence of a
breach, the mere failure to investigate, in itself, does not
constitute a breach of the duty of fair representation. ”).
Approximately forty-eight hours prior to the NJSSC
proceeding, Neal, Garrison, and Joe Clark of Cassens came
together to swap documents that would be presented to the
committee. Among the items exchanged were the seven
arbitral precedents that Cassens intended to rely on in support
of its thirty-day rule defense. Garrison and Neal reviewed
these decisions and were of the view that the defense was
inapplicable to Garrison’s grievance.'’ Accordingly, Neal and
'! Garrison insists that there is no evidence that Neal and he
evaluated the arbitral decisions provided by Cassens or that they
believed that the decisions were inapplicable to his grievance.
However, the record indicates that Garrison clearly testified on
cross examination that both Neal and he reviewed the arbitral
decisions submitted by Cassens, and were of the view that the
decisions were inapplicable to Garrison’s situation. Specifically,
Garrison testified as follows:
Q: My question to you was: You [i.e., Garrison] had them
on Sunday, and did you have an opportunity to look at
them between Sunday and Tuesday, when the hearing
takes place?
A: The answer to your question is yes.
Q: Okay. And you, in fact, did review those decisions,
didn’t you?
A: I did look at them, yes, sir.
Q: And Mr. Neal also looked at those decisions, didn’t
he?
A: Yes, sir.
————————
24a
Garrison did not prepare a response to this defense. Neal’s
decision not to research and prepare a response to a defense
that he believed was inapplicable to the grievance he was
handling is a tactical decision subject to deference. After
evaluating the decisions submitted by Cassens--and
determining they were irrelevant or distinguishable from
Garrison’s claim--it was in Neal’s discretion to determine how
he wanted to expend his time, efforts, and resources in
continuing to prosecute Garrison’s grievance. If Neal
determined that a change in strategy was not warranted, a
conclusion that Garrison concurred with, then unless
discriminatory, wholly irrational, or made in bad faith, it is
not for us to second guess the wisdom of the decision.
Moreover, like other contexts where we engage in post hoc
evaluation of conduct, we must be ever vigilant to avoid the
distorting effects of hindsight. Although Neal’s decision not
to obviate or otherwise prepare a rebuttal to the thirty-day
rule proved to be a devastating error, the error can at worst be
viewed as a miscalculation of strategy. Certainly, independent
research and consultation would have been the preferable
course of action, particularly when such research may have
uncovered the Avon Lake arbitral precedent that supported
Garrison’s grievance. However, as our case law makes clear,
Q: And both of you came to the same conclusion, which
was that you felt, in your judgment that those decisions
were different than your situation; correct?
A: We felt that those decisions had nothing to do with our
case. That’s what I felt, and that’s what he [i.e., Neal]
told me that he felt.
* * *
Q: So both you and Mr. Neal decided, after reviewing the
cases and determining them to be not applicable, to go
forward with the hearing on November 5th; correct?
A: Yes, sir. |
25a
“an unwise or even an unconsidered decision by the union is
not necessarily an irrational decision.” Walk, 958 F.2d at
1326.
In Walk, a plaintiff brought a hybrid § 301 suit alleging
that he was wrongfully discharged due to an erroneous drug
test result that indicated a positive finding of marijuana. The
plaintiff argued numerous errors in the union’s handling of his
arbitration proceedings. The most difficult issue was whether
the union’s failure to challenge the clinic’s method of
collecting and sealing the specimen, a method that was not in
compliance with the procedures outlined in the collective
bargaining agreement, amounted to breach of the duty of fair
representation. Under existing case law from the Northern
District of Ohio, a defect in the mandated chain of custody
arguably could serve as a basis to set aside a discharge
resulting from a drug test violation. See id. at 1329.
Accordingly, we had to consider whether the union’s failure
“to raise this issue in a timely fashion may have constituted
more than mere negligence, and whether not raising the chain
of custody issue may have been far outside a wide range of
reasonableness because it may well have made a difference in
the outcome of [the plaintiff's] grievance.” /d. (internal
quotation marks omitted). Although recognizing that the issue
was a Close call, we held that the error did not rise to the level
of breach. Specifically, we found that
The chain of custody issue is the most difficult of
those raised by Walk. Failure to challenge the
procedure did not involve a mere tactical decision by
Local 299, and it did not involve a large expenditure
of funds. It presents a very close question, but we are
persuaded that this failure was more of an omission or
oversight, a negligent error of judgment that was not
directed against plaintiff capriciously or in bad faith.
AIRE EEE 8 RS cease RS ea
26a
We accordingly conclude, despite some reservation,
that this conduct was not outside the O’Neill standard
under all the circumstances.
Id. Thus, Walk presented a much more difficult question than ~
the case at bar because unlike the situation here, in Walk, the
union’s decision not to research and present a particular
defense was not even the product of a tactical decision. Here,
Neal’s decision not to prepare a response to the applicability
of the thirty-day rule was a tactical decision subject to
deference. Accordingly, there was insufficient evidence to
support a finding of arbitrary conduct on this issue.
Last, Garrison maintains that it was arbitrary behavior for
Neal to sit silent during the NJSSC hearing and not challenge
the arguments made by Cassens in support of the applicability
of the thirty-day rule. Again, although Neal’s muteness was
not the most effective method to assist Garrison in his
grievance, it was not so unreasonable to constitute sufficient
evidence of breach of the duty of fair representation; at worst,
it was negligence. See Black, 15 F.3d at 584 (“As the
Supreme Court has made abundantly clear, a plaintiff will not
succeed if he can show only slightly unreasonable behavior on
the part of the union. . . .”). The fact of the matter is that
Garrison assumed primary responsibility for presenting his
grievance before the NJSSC. In his capacity as chief
presenter, he responded to and challenged Cassens’s assertion
that the thirty-day rule should defeat his claim. Before the
committee, Garrison specifically argued that “I did not believe
the thirty (30)-day report rule. . is applicable, because you
will find [that] in NMATA .. . seniority shall not be broken
except by discharge, voluntary quit, [or more than a seven
(7)-year layoff].” Given that Neal had made the reasoned
judgment not to research or prepare for what he believed was
an inapplicable rule, we cannot see--and Garrison has not
27a
explained--what more Neal could have said or done before the
committee other than repeat Garrison’s interpretation of
NMATA. Although Garrison is correct to assert that Neal
would likely have more credibility than Garrison, any
intervention by Neal would not have added much, if any,
value to what was already argued by Garrison. ~Also,
regardless of the arguments made at the hearing, the NJSSC
panel was supplied copies of the prior arbitration decisions,
and itself was able to assess the relevance of those decisions.
Without sufficient evidence that Local 327 breached its
duty of fair representation, Garrison’s hybrid § 301 action
must fail. Accordingly, we need not address Cassens’s alleged
breach of the collective bargaining agreement, or the
numerous other issues that Cassens has raised on appeal.
Because we reverse the denial of Cassens’s motion for
judgment as a matter of law, we consider whether any
grounds exist that might warrant a new trial. See Neely ».
Martin K. Eby Constr. Co. , 386 U.S. 317, 328-29, 18 L. Ed.
2d 75, 87S. Ct. 1072 (1967). Garrison did not request a new
trial in his brief in the event we reversed the district court and
has presented no reasons why a new trial should be ordered.
Our review of record also convinces us that no such grounds
exist. Therefore, we direct the entry of judgment as a matter
of law for Cassens. See id. at 326 (holding that an appellate
court may in its discretion appropriately instruct the district
court to enter judgment against a jury-verdict winner when
further proceedings are unwarranted). Accordingly, the
judgment below is REVERSED, and this case is
REMANDED to the district court for the entry of judgment
as a matter of law for Cassens.
a La ae ee
28a
C. Civil Contempt Order
On January 7, 2002, the district court entered an order
holding Cassens in civil contempt of the court’s prior order of
July 24, 2001. Specifically, it found that Cassens failed to
timely reinstate Garrison to his job and to his rightful place on
the Cassens seniority list and failed to make certain pension
payments as ordered by the court. Because Garrison had
already been reinstated by Cassens at the time the court issued
its ruling, as compensatory damages for contempt, Cassens
was ordered to pay lost wages to Garrison in the amount of
$15,367.75, and to assign Garrison a company seniority date
of June 10, 1996, on its roster and all records. Cassens was
also ordered to pay Garrison retroactive pension contributions
beginning from June 10, 1996. Because we find no basis for
liability under § 301, we necessarily reverse and vacate the
district court’s civil contempt order in its entirety.
“Broadly, the purpose of civil contempt is to coerce an
individual to perform an act or to compensate an injured
complainant.” United States v. Bayshore Assocs., Inc., 934
F.2d 1391, 1400 (6th Cir. 1991). The purpose of a criminal
contempt order, however, is “punitive”; it is “to vindicate the
authority of the court.” Gompers v. Bucks Stove & Range
Co., 221 U.S. 418, 441, 55 L. Ed. 797, 31 S. Ct. 492
(1911). “The general rule is that whether a contempt
judgment survives the avoidance of an underlying order
depends on the nature of the contempt decree. If the contempt
is criminal it stands; if it is civil it falls.” Latrobe Steel Co. v.
United Steelworkers, 545 F.2d 1336, 1342 (3d Cir. 1976)
(citation omitted).
ER i Se TEE Toa NR ESSN A Se ee eee
PS OS A eR LN ENT
29a
As the Supreme Court has long held
It does not follow, of course, that simply because a
defendant may be punished for criminal contempt for
disobedience of an order later set aside on appeal, that
the plaintiff in the action may profit by way of a fine
imposed in a simultaneous proceeding for civil
contempt based upon a violation of the same order.
The right to remedial relief falls with an injunction
which events prove was erroneously issued... .
United States v. United Mine Workers, 330 U.S. 258, 294-95,
91 L. Ed. 884, 67 S. Ct. 677 (1947) (emphasis added). In a
similar vein, we have also explained that
A conviction for criminal contempt may indeed
survive the reversal of the decree disobeyed; the
punishment is to vindicate the court’s authority which
has been equally flouted whether or not the command
was right. But the same cannot be true of civil
contempts, which are only remedial. It is true that the
reversal of the decree does not retroactively obliterate
the past existence of the violation; yet on the other
hand it does more than destroy the future sanction of
the decree. It adjudges that it never should have
passed; that the right which it affected to create was
no right at all. To let the liability stand for past
contumacy would be to give the plaintiff a remedy not
for a right but for a wrong which the law should not
do.
Blaylock v. Cheker Oil Co., 547 F.2d 962, 966 (6th Cir.
1976) (quoting Salvage Process Corp. v. Acme Tank Cleaning
Process Corp., 86 F.2d 727, 727 (2d Cir. 1936) (per
curiam)).
EE Sr er -
30a
In the instant matter, in imposing sanctions, the district
court focused exclusively on compensating Garrison for the
losses he sustained as a result of Cassens’s alleged contempt.
The court’s narrow focus leaves no doubt that the contempt
order at issue is remedial in nature. See Latrobe Steel Co.,
545 F.2d at 1344 (“Remedial or compensatory actions are
essentially backward looking, seeking to compensate the
complainant through the payment of money for damages
caused by past acts of disobedience.”) (citations omitted).
That being so, and having already determined that there is no
basis for liability in the underlying action, then pursuant to
controlling authority, the district court’s compensatory
contempt order can no longer stand.
III. CONCLUSION
We REVERSE the jury verdict and REMAND to the
district court for the entry of judgment as a matter of law for
Cassens in case No. 01-6056. In case No. 02-5124, we
REVERSE and VACATE the district court’s contempt order
in its entirety.
APPENDIX C
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE,
NASHVILLE DIVISION
Case No. 3:98-0415
[Filed Aug. 2, 2001]
AMENDED JUDGMENT IN A CIVIL CASE
DAVID L. GARRISON
VS.
CASSENS TRANSPORT CO.
i A i
O Jury Verdict. This action came before the Court for
a trial by jury. The issues have been tried and the jury
has rendered its verdict as reflected in the verdict form
filed July 12, 2001 (Docket Entry No. 240) and found
as follows:
1) The plaintiff had established by a preponderance of
the evidence that Local Union 327 breached its duty of
fair representation in handling the plaintiff's grievance
against Cassens.
2) The Union’s breach of duty did seriously flaw the
grievance process such that it is more likely than not
that the decision of the National Joint Standing
3la
32a
Seniority Committee would have been different had
the breach of duty not occurred.
3) The plaintiff had established by a preponderance of
the evidence that Cassens Transport Co. breached
Article 5, Section 3 and/or Article 5, Section 4(c) of
the National Agreement by failing to employ the
plaintiff in June of 1996 at the Smyrna, Tennessee
Terminal.
4) The jury awarded back pay damages in the amount
of $408,885.00 to the plaintiff and that amount should
not be reduced any further for actual earnings and/or
the plaintiff's failure to mitigate his damages.
5) The jury determined that 75% of the plaintiff's back
pay damages should be apportioned to the company
and 25% of the plaintiff's back pay damages should be
apportioned to Local 327.
6) The jury found that the plaintiff proved by a
preponderance of the evidence that he is entitled to
receive punitive damages in the amount of
$500,000.00 from the defendant.
In accordance with the jury verdict and the court’s rulings
on July 24, 2001 by separate order, it is hereby ORDERED
that:
1) The plaintiff shall recover from the defendant
Cassens Transport Co. $306,663.75 in back pay
damages and $500,000.00 in punitive damages.
33a
2) The defendant Cassens shall immediately reinstate
the plaintiff as a car-haul driver, with a terminal
seniority date of September 25, 1980.
3) Cassens shall pay into the Central States Pension
Fund all payments necessary so that Mr. Garrison’s
pension record reflects no break in service. These
payments will be credited to Cassens and deducted
from the back pay damages awarded by the jury.
IT IS SO ORDERED AND ADJUDGED.
ENTER this 2™ day of August 2001.
ROGER A. MILAM, CLERK
/s/
BY BETTY BRIGGS-JONES
DEPUTY CLERK
APPENDIX D
NATIONAL MASTER AUTOMOBILE
TRANSPORTERS AGREEMENT
( NMATA )
For The Period Of
May 22, 1995
thru
May 31, 1999
Contained Herein Are Selected Portions Of The National
Master Automobile Transporters Agreement
A “Current Term” contract is obtainable by going online
to www. Teamsters.org/divisions/auotrans/contracts.htm and
then double-click on “Carhaul National Master Agreement”,
by doing so you will then receive a complete downloadable
“National Contract Document”, in PDF format.
34a
35a
ARTICLE 5. SENIORITY
Article 5., Section 1. Definition of Terms
“Company seniority” is a term that is applied to an
employee’s date of hire by the employer.
“Terminal seniority” is a term that is applied to the
employee’s most recent date of employment at a specific
terminal.
“Dovetail seniority”! is a term that is applied when two (2)
or more seniority lists are merged or combined into a single -
seniority list which recognizes the terminal seniority date of
eachemployee. The list is arranged by terminal seniority date
with the most senior employee at the top.
“Endtail seniority” is a term that is applied when an
employee or group of employees are placed at the bottom of
a terminal seniority list although they retain their company
seniority date for fringe benefits.
“Terminal” is a term that is applied to any facility of an
Employer to which employees are assigned to work whether
called a branch, terminal, division or operation.
“Fringe Benefits”, as used in this Article, is a term that shall
apply to vacation accrual only.
' The bolding of type did not appear in the original document, but
is provided to direct the attention of the reader to significant words
and terms that are discussed in this law suit.
36a
Article 5., Section 2.
Terminal seniority rights for all employees covered by this
Agreement shall prevail unless the Supplements or other
provisions of this Agreement provide specifically to the
contrary. Because of the nature of the transportation industry
in which employees transfer during the term of their
employment in the industry from one location to another as
the flow of business requires, there are two (2) levels of
seniority recognized by this Agreement. These levels are
known as “company seniority” and “terminal seniority” as
defined in Section 1.
The extent to which seniority shall be applied and accrued as
well as the methods and procedures of such application shall
be clearly set forth, in writing, in this Agreement and in the
Supplemental Agreements, including approved Local Riders.
Article 5., Section 3.”
(a) Seniority, including for fringe benefits, shall only be
broken by discharge, ° voluntary quit,‘ more than a seven
(7)-year layoff,’ except as otherwise provided herein or for
* The bolding of type did not appear in the original document, but
is provided to direct the attention of the reader to significant words
and terms that are discussed in this law suit.
> Garrison was not “discharged”.
* Garrison did not “voluntarily quit”.
> Garrison was not on “Layoff”.
Garrison’s name should have been put on Cassens seniority
list in 1994, along with all the other Allied drivers that
decided to follow the traffic to Cassens from Allied
i
37a
such greater period than seven (7) years as the appropriate
Joint Arbitration Committee may direct during the seventh
(7") year. This provision shall be uniformly applied
throughout all Supplemental Agreements to the National
Master Automobile Transporters Agreement.
(b) Leave of Absence for Union Activities ( omitted )
Article 5., Section 4.
Seniority lists are dovetailed in the following circumstances:
When the same Employer merges two (2) or more terminals;
a. When commonly owned separate Employers merge two
(2) or more terminals;
b. When two (2) or more Employers share traffic from the
Same shipper at the same location and the traffic of one (1) of
the Employers is canceled by the shipper and it is assigned to
one (1) of the remaining Employers, whether or not there is
a financial transaction of any kind involving the affected
Employers. At port facilities, the canceled Employer must
have regularly handled the traffic for a period of at least six
(6) months for this provision to apply.
c. When two (2) or more terminals are merged after an
Employer enters into a major financial transaction such as a
merger, purchase, acquisition, sale or similar transaction with
Systems. Garrison was off work due to an OJI and his
name merely should have been “Dovetailed” on the new
list in 1994, as was decided by prior directives of the
NATJAC Committee in the Avon Lake Decision of 1992.
38a
another Employer. It is immaterial whether the transaction
involved merely the purchase of stock of one (1)corporation
by another, with two (2) separate corporations continuing in
existence.
(e) The above rules shall not apply to the acquisition of a
wholly separate and independent company, the operations of
which are conducted separately from other operations covered
by this Agreement.
Article 5., Section 5.
a. Inthe event a shipper cancels its business relationship with
an Employer at a location and transfers all or part of that
business to another Employer which is not servicing that
shipper at that location, whether or not there is a financial
transaction of any kind involving the affected Employers,
both the active and the laid-off employees of the canceled
Employer at that terminal shall be placed on a master
seniority list. Those employees who accept employment with
the successor employer shall be given a new company
seniority date. This new company seniority date shall be the
date used for work opportunities at any of the successor
Employer’s location except the employee’s original terminal.
However, the employee shall retain his prior company
seniority date for fringe benefits. At port facilities the
canceled Employer must have regularly handled the business
for a period of more than six (6) months.
(b) Employees of the canceled Employer who remain on
layoff after all of the seniority rights contained in Sections 4
and 5(a) have been exercised shall remain on layoff status at
their home terminal with recall rights unimpaired. They shall
be afforded additional help opportunities at other locations by
both Employers. For work opportunities at its other location
39a
the successor Employer must exhaust its obligations to its
existing laid-off employees before offering opportunities to
employees of the canceled Employer. If an employee accepts
employment under this subsection with the successor
Employer, a new company seniority date shall be given and
there shall be no further obligation of the canceled Employer.
However, the employee shall retain his prior company
seniority date for fringe benefits. If the employee selects
employment at another location of the canceled Employer,
there shall be no further obligation of the successor employer
to that employee.
Article 5., Section 6. thru9. ( omitted )
Article 5., Section 10.
Notices of Changes Which Affect Seniority
When a change is made by an Employer which affects the
seniority rights of its employees as provided in this Article,
the Employer shall give the affected Local Union(s)
reasonable notice in advance of the change. The Employer
and Local Union(s) shall cooperate in assisting the appropriate
Area Joint Arbitration Committee or National Committee in
determining the seniority of the employees affected in
accordance with the terms of this Agreement. Such
determination shall be final and binding on the Employer, the
Local Union(s) and the employees.
———77~
40a
ARTICLE 7. GRIEVANCE MACHINERY
Article 7., Section 1. thru 17. ( partially omitted )
Article 7., Section 4. Step 4.
The Local Union and the Employer shall conduct a local-level
hearing after the foregoing steps have been exhausted.
Scheduling of the local-level hearing will be by mutual
agreement but it is to take place as soon as possible but no
later than thirty (30) days after the Employer’s written
response to the grievance to discuss and attempt to resolve the
grievance. If the grievance is not resolved at the local-level
hearing, either party has the right to file the grievance with
the appropriate Joint Arbitration Committee within fifteen
(15) days after the local-level hearing.
During the local-level hearing and prior to docketing the
grievance with the Joint Arbitration Committee, the business
agent and Employer representative shall designate in writing
that the grievance has been examined by both parties. This
document must be attached to the grievance if it is filed with
the Joint Arbitration Committee. Failure of the Local Union
and the Employer to comply with this requirement shall
preclude the docketing of the grievance and it shall be
returned to the parties to comply with this requirement.
Any party to a grievance who intends to use a decision of
any Joint Arbitration Committee as precedent must
present a copy of the decision to the other party as soon as
possible prior to the presentation of the case to the
Committee.
ill ii
(RE
|
4la
Article 7., Section 18. Grievant’s Bill of Rights®
All employees who file grievances under the Agreement and
its Supplemental Agreements are entitled to have their cases
decided fairly and promptly. In order to satisfy these
objectives and promote confidence in the integrity of the
grievance procedures, all employees who file grievances are
entitled to the following rights:
1. Grievants and Stewards shall be informed by their Local
Union of the time and place of the hearing.
2. Grievants and Stewards are permitted to attend, at their
own expense, the hearing in cases in which they are involved,
unless otherwise agreed to by the Employer and Local Union.
3. The Employer shall provide any pertinent and relevant
information identified with reasonable specificity within
fifteen (15) days of receipt of a written request by the Local
Union, Steward or grievant.
4. All cases involving seniority or a discharge shall be
recorded, except for executive sessions. Transcriptions of
these proceedings shall be prepared in response to written
requests by the Local Union at the reasonable cost of
transcription, which shall be borne by the employee or party
making the request.
The bolding of type did not appear in the original document, but
is provided to direct the attention of the reader to significant words
and terms that are discussed in this law suit.
42a
5. A grievant or Steward may request permission to present
argument in support of the case in addition to the evidence or
argument presented by the Local Union.
6. All Joint Committees shall provide written decisions
describing the reasons relied upon in reaching the decision.
7. Cases may not be postponed only by mutual agreement
between the Local Union and Employer.
8. A copy of the Joint Committee Rules of Procedure,
including the Grievant’s Bill of Rights, shall be provided by
the Joint Committee upon request of the grievant prior to the
commencement of the Joint Committee hearing.
End of Selected Portions of the:
National Master Automobile Transporters Agreement
( NMATA )
A “Current Term” contract is obtainable by going online
to www. Teamsters.org/divisions/auotrans/contracts.htm and
then double-click on “Carhaul National Master Agreement”,
by doing so you will then receive a complete downloadable
“National Contract Document”, in PDF format.
APPENDIX E
AVON LAKE DECISION
NATIONAL AUTOMOBILE TRANSPORTERS
JOINT ARBITRATION COMMITTEE
(NATJAC )
Minutes of the NATJAC Meeting Held
Tuesday, Wednesday, and Thursday
May 5, 6, and 7, 1992
Scottsdale Plaza Resort, Scottsdale, AZ 85253
NATJAC No. 5-92-(2-92)-465-A
Cassens Transport Company
V
Teamsters Local Union No. 571 ( Lorain, OH )
and
E & L Transport Company
and
Teamsters Local Union No. 964 ( Cleveland, OH )
43a
44a
HEARING PANEL’
Employer Co-Chairperson Union Co-Chairperson
R. Ian Hunter Ernest Tusino
Employer Panel Members Union Panel Members
Ron Borges Charles Collins
William Hadley James Doorhy
A. J. Kosak Merl Kelly
Jack Nelson Jim Roberts
RE: Request for Committee approval for procedures
applicable to fine staffing of a new facility
at
Avon Lake, Ohio. ( 1992 )
DISCUSSION:
Bob Eliser of Local Union 377 appeared by designation by
Chuck Ayres, Local union 964 to set forth the position of
Local Union 964 at this hearing. While the Local Union was
advised by Cassens Transport Company (“Cassens”) that is to
receive two hundred fifty (250) units a day, five (5) days a
week with a total 17,000 units a year at Avon Lake railramp,
Local 964 believes, based upon, prior history, it will be more
like 34,000 units a year. Local 964 was informed by Cassens
that seven (7) of its members from E & L Transport’s (“E &
L”) Lorain terminal were working at the Avon Lake railhead.
There should be at least twenty five (25) to thirty (30) drivers
' The bolding of type did not appear in the original document, but
is provided to direct the attention of the reader to the fact that these
persons participated in both, the Avon Lake Decision of 1992 and
the Dana Point Decision of 1996.
45a
working at this location in due time. The Local Union claims
that 30 percent of the vehicles delivered from the railhead are
400 hundred miles or more. Trips of this distance are more
than a day’s work. The Local Union also believes that
Cassens is presently employing thirty (30) Cassens drivers at
the railhead to handle the backlog of cars. This is another
reason why the Local Union believes that Cassens needs more
employees from Lorain to handle the rail traffic previously
handled by the E & L Lorain drivers.
In addition, the Local Union asked that the Committee direct
that sick pay, personal holidays and other fringe benefits be
prorated by the Companies in accordance with the contract.
The Local Union asked the Committee to retain jurisdiction
until more accurate data is available to determine the true
number of drivers required by Cassens to handle the former
Lorain railhead traffic, the work which the Local 964 and E
& L members are entitled to perform.
Charles Lee appeared on behalf of Local Union 299.” He
asked that if the seniority rights of E & L Woodhaven drivers
were directly affected by the opening of the Avon Lake
facility their rights be protected. At this time the Local Union
is not aware of any specific facts which would justify such
application, but asked the Committee to retain jurisdiction
until, the full extent of the impact of the opening of the Avon
Lake facility on Woodhaven could be ascertained.
Jim Walker appeared on behalf of Cassens.’ He indicated
that tile Company had just begun to operate out of Avon Lake
2 Charles Lee, was a Panel Member of the Dana Point Decision
of 1992.
3 Jim Walker, Labor Representative for Cassens.
4
¥
3
46a
(also known as Sheffield). A substantial delay in the opening
of the railhead had occurred, and thus, the Company could
not implement until very recently the decision rendered by the
National Committee in Case 465 at its October 21-23, 1991
meeting, Had the railramp operated in advance of the plant
opening, it would, have permitted the Company and Local
Union to ascertain more precisely the level of traffic
associated with the railramp. However, both the railramp and
the plant commenced to operate concurrently. Thus, the rail
traffic will have to be isolated from the plant traffic to
determine how many E & L Lorain drivers are entitled to
transfer to the Avon Lake facility. This is because the
National Committee’s earlier decision had separated the rail
traffic from the plant traffic and had awarded seniority rights
to the E & L Lorain drivers only for the railramp traffic.
Cassens drivers were awarded the fight to bid the plant traffic.
Cassens presently estimates that they will need twelve (12)
Lorain drivers to handle the rail traffic diverted from the
Lorain rail ramp. The Company does not yet know the
number of drivers it will need for the plant traffic. The
Company reviewed the number of units received by it during
the eight (8) day period it operated out of the railramp. This
data revealed the company had received, an average of 1.15
units a day. Since many of the trips are short in distance, a
driver will be able to haul more than one load a day. This is
the basis of Cassens contention it will need no more than
twelve (12) E & L Lorain drivers.
When questioned, Mr. Walker [ Cassens Transport Co. ]
noted that one hundred fifty (150) E & L Lorain drivers had
bid the Avon Lake facility. The Company estimates that it
will load ten units a load and that 40 percent of the Avon rail
traffic is for the Cleveland zone.
47a
In addition to the number of E & L Lorain drivers entitled to
work at the railhead...
Cassens [ Mr. Walker ] asked for clarification as to how
long the Company is obligated to afford work at the Avon ~
Lake facility to an E & L Lorain driver presently on a
leave of absence due to an on-the-job injury.*
Perchie Adkins appeared on behalf of E & L. He indicated he
wanted consideration given to modifying application of the 20
percent rule at the E & L Lorain terminal given the loss of its
business to the Cassens Avon Lake facility and other factors
in order to utilize backhauls from the terminal in the future.
MOTION:
That based upon the facts and evidence presented, the
Committee decides as follows: |
The Committee’s original, decision in Case No. 10-91-465 is
hereby affirmed. The Company is instructed to continue to
staff the rail and plant facility in accordance with that decision
during the next ninety (90) days. The parties are instructed to
report back to the Committee in writing the action taken by
the Company to implement the decision at the August 1992
meeting, at which time the Committee will determine whether
to end or extend the window period.
4 Cassens knew what to do with Garrison in 1994, because in this
decision, the Avon Lake Decision of 1992, Cassens asked the
NATJAC Committee for clarification, as what to do when an
employee is off work on compensation status and that employee
elects to “Follow The Work” to the surviving company.
48a
°
With regards to the E & L employee on workers’
compensation’ who has elected to transfer to Cassens, he
is to be deemed as transferred and will hold seniority at
. Avon Lake and will be permitted to assume an active
position upon his release from compensation status®
> This Avon Lake Decision of 1992, established the standard and
instructed Cassens and all signatories of NMATA, as what to do in
the future, when under Article 5, Section 4, or Article 5, section 5,
an employee is off work on compensation status elects to “Follow
The Work” to the surviving company.
° When NATJAC orders the “Dovetailing” of the two (2) seniority
lists mandated in NMATA Article 5, Section 4, or Article 5,
Section 5, and when that employee who is currently not working
and who is on compensation status, due to an on-the-job injury or
sickness, elects to “Follow The Work”, to the new NMATA
Employer, that employee’s name is “Dovetailed” along with all the
other drivers’ of both companies being mereged, into a new master
seniority list. (ref. NMATA, Article 5, Section 5 (a) ), and noted
beside his name are the words “Compensation Status” or “Off on
Injury”.
Having ones name on the seniority list is the only way one can hold
seniority at any location.
After the effected worker obtains a medical release from
compensation status, that worker merely returns to work and
resumes his regular duties with the new NMATA Employer.
-In this manner, employees who just happen to be on
compensation status, when the shipper (Nissan) decides to
transfer traffic from one NMATA Employer (Allied Systems) to
another NMATA Employer (Cassens), the effected employees are
not discriminated against merely because that employee just
happened to be off on compensation status during the time of
traffic transfer.
creer SS sO RRL
49a
With respect to vacations, sick pay, personal holidays and
other fringe benefit obligations, the Companies and Local
Unions are instructed to exchange the information necessary
to enable E & L Transport to make the appropriate pro-rata
payments to its employees who elect to transfer to Cassens
with respect to each of the above contractual obligations for
the period ending on the date that each such employee is put
to work at Cassens. Cassens, thereafter, shall, assume these
obligations, also on a pro-rata basis, effective on the date that
each such employee is put to work.
MOTION CARRIED.
APPENDIX F
BEFORE THE
NATIONAL JOINT STANDING
SENIORITY COMMITTEE
Case No. NJSSC-11-96-(9-96)-38
IN THE MATTER OF:
LOCAL 327 (NASHVILLE)
VS.
CASSENS TRANSPORT COMPANY
Nee eee eee ee”
Tuesday, November 5, 1996 at the Laguna Cliffs Resort
Dana Point, California
EMPLOYER PANEL MEMBERS
R. Ian Hunter, Co-Chairperson
Ron Borges
William Hadley
Anthony LaBue
UNION PANEL MEMBERS
J.D. Jackson, Co-Chairperson
Charles Lee
Timothy Lehman
Fred Zuckerman
Sla
CASSENS TRANSPORT COMPANY
REPRESENTATIVES:
Allen Cassens
Joe Clark
LOCAL 327 REPRESENTATIVES-
Jimmy Neal
David Garrison, Grievant
[p.25]
down through that list again. On Exhibit One (1) or Two (2),
Mr. Garrison’s name is not on it. A clerical error or mistake
was made in that -- if you go to Ailied’s seniority list --
Exhibits Three (3), A (3a), B (3b), and C (3c) -- the only
thing that we can figure is that the 9-25-80 date was picked up
-- picked up off of this list which was not a list given to us,
because you can see the way it was issued. We were going
through this list -- when we were going through -- in our
home office, to make sure that we had the correct dates. As
you can see on Exhibit Three (3)where people were told what
to use for the fringe date and what to use for the terminal date
and what to use for the Company date. That’s how the dates
got messed up. Gentlemen, Exhibit Four (4) in your package
is, in fact, the release that Mr. Garrison brought to us. And
you can see that the release is dated 6-7-96. And you can also
see that -- that release does say able to return to work with the
following restrictions and the restrictions are duties as
tolerated. And then the Company couldn’t get a medical
release to full duty, So therefore, based upon that, we
couldn’t return Mr. Garrison to work. Item Five (5), you’ll
see Mr. Garrison’s letter to Mr. Barlow, the business agent
of record for Local 327. Agent Barlow never notified Cassens
Transport that, in fact, Mr.Garrison wanted to come to us
from Allied and that includes me and Jim in Smyrna too. You
52a
also have as part of Exhibit Five (5) -- Cassens Transport
Company was not, in fact, copied on this correspondence.
Nor were we presented with the letters that he claimed that he
wrote back to Edwards --
[p.26]
you will find that we were not copied either. At no time, since
October 1994 to June of 1996, did Mr. Garrison ever
contacted Cassens Transport. Until I guess, he wished he’d
come to us, or he thought he had a right to come to us -- or
any thing, shape, form, or fashion which would be on our
Seniority list. Exhibit Six (6), gentlemen, and Six A (6a) - the
last seniority list posted by Cassens Transport Company prior
to any transfer of Allied drivers to Cassens Transport. And
you will, in fact, find that Mr. Garrison’s name is not on it.
You take Exhibit Seven (7) and Seven A (7a) dated 11-11-94
is, in fact, the first seniority list where drivers who wished
from Allied Systems that transferred to Cassens Transport.
Again you will not find Mr. Garrison’s name on it. Exhibits
Eight (8) and Eight A (8a) dated 11-15-94 is a list showing
when additional Allied drivers came on duty to the Cassens
board through the decision of 801-A. Again, you will not find
Mr. Garrison’s name on it. Exhibits Nine (9) and Nine A (9a)
dated 1-4-95 -- again, it’s the seniority list that was posted.
Again, you will not find Mr. Garrison’s name on it. Exhibits
Ten (10) and Ten A (10a) dated 1-10-95 -- it is, in fact, again,
the seniority list of Cassens Transport. And again, you will
not find Mr. Garrison’s name on it. Exhibits Eleven (11)
through Thirteen (13) are, in fact, representative of every six
(6) months -- we show you in here a copy of the seniority list
that we ran and posted. And nowhere is Mr. Garrison’s name
on it. The Local Union was sent a copy of each and every one
of these seniority lists. And at no time, okay, until now--until
June of 1996, did the
eT ee RT Oe ee
=e an aed ae ie
53a
[p.27]
Local Union ever question us or protest to us that Mr,
Garrison’s name was not on the seniority list. Nor did Mr.
Garrison. himself, ever question us or protest that his name
was not on the list. Exhibit Fourteen (14), gentlemen, is the
decision in Case Number 801-A -- again heard, at such time,
by this National Committee. And in this case, it was heard at
the Tradewinds on St. Petersburgh Beach in January of 1995.
And you will see that it’s listed as Case 801-A which is the
original case number. All of the parties listed on the docket
were, in fact present -- which meant Cassens, Commercial,
Allied - and all of their representatives were present, along
with Local Union 327. At that time, there was a question as
to whether the seniority list was correct or not. The decision
in that case was that, in fact, it was correct, and the seniority
list shall remain unchanged. At that time -- during that
meeting, there was never any evidence presented, any position
taken, or any protest raised where Mr. Garrison’s name was
not on that seniority list. That seniority list was published,
based upon information supplied to us at the beginning of
October of 1994. Mr, Garrison’s name has never been
supplied to us as being one that wished to transfer from Allied
to Cassens Transport. During the local level, July 12, 1996,
Mr. Hodges, the agent for Local 327, testified to all that
Local 327 had participated throughout the preparation of all
the lists --had seen all the lists -- in fact, they had been given
from Allied to either Cassens or Commercial. And he testified ~-~——
in front of all at local level that he had never seen Mr.
Garrison’s name on any list supplied to either
* * *
APPENDIX G
Excerpted Portions of Trial Transcript
[p.86]
Q.
So that would have been about 60 days after the election
to follow the work?
A.
Q.
Yes.
And are you aware of anything that Cassens ever did to
notify any drivers that they had to show up for work within 30
days or be removed from this dovetail list?
A.
Q.
As it pertains to this decision?
As to any driver. Was any driver -- prior to Dave
Garrison showing up in June of 1996, was any driver ever
informed that they had 30 days to show up or their name was
going to be taken off the seniority list?
A.
Q.
A.
>
Not in Smyrna, that I’m aware of, no.
Are you aware of it anywhere else?
Yes, sir, I am.
. Prior to 1996?
. Oh, ag sir. No, that I was not.
54a
7 ,
r :
55a
Q. Okay. Thank you. Are you aware of anything that Local
327 or Allied ever did to notify any driver prior to June of
1996?
A. I would not have knowledge of Allied or what Local 327
did.
Q. Do you have a bulletin board there at Cassens?
A. Yes, sir, I do.
Q. Are things -- notices to drivers posted on that bulletin
board?
[p.87]
A. Yes, sir.
Q. Was there ever anything posted to tell drivers they had to
show up within 30 days or have their name taken, off the
seniority list?
A. No, sir.
Q. And you, yourself, were not aware of any 30-day rule that
required any drivers to show up for work prior to Mr.
Garrison showing up in June of ‘96; were you?
A. No, sir, not at that time.
Q. If you would, sir, in the book that I gave you, would you
turn to Exhibit 5, please? Will you turn to that page?
A. Yes, sir.
56a
Q. Can you tell us what that is?
A. It is a seniority roster, with a run date or a produce date
of 11/15 of 1994.
Q. All right. And Mr. Nance’s name is not on there; is it?
A. No, sir; it is not.
Q. And Mr. Garrison’s name is not on there?
A. No, sir, it is not.
Q. But we do have Driver Langston and Driver James on
there. Do you see those lines?
A. Yes, sir; I do.
Q. And it has a WC out next to it. Can you tell us [p. 88]
what that means?
A. Yes, sir. It means those two drivers are on workmen’s
comp.
Q. All right. Take a look at the next exhibit, Exhibit 6. And
what’s the date of this seniority list?
A. 1/4 of ‘95.
Q. And is Mr. Nance’s name on this list yet?
A. No, sir, it is not.
Q. But we still have Mr. James’ name with the work comp
next to it; correct?
S7a
A. Yes, sir; you do.
Q. He’s still off on work comp, unable to work; right?
A. That is correct.
Q. And James -- I’m-sorry, Langston is down as vacation;
correct?
A. That is correct, as well.
Q. So he also wasn’t coming into work?
A. No, sir, he was on vacation.
Q. All right. Let’s look at the next one, Exhibit 7. What’s
the date of this seniority list?
A. Mine in this book is 1/10 of ‘95.
Q. Thank you. And is this the first one where Langston -- I’m
sorry, Mr. Nance’s name appears?
A. Yes, sir.
Q. Allright. And what’s the date of Mr. -- I’m sorry, [p. 89]
what did I say -- I meant Nance. This is the first time Mr.
Nance’s name appears on a Casseas’ seniority list; correct?
A. Yes, sir; it is.
Q. And we have Langston on vacation, James still on work
comp; correct?
A. Yes, sir.
58a
Q. Did Langston or James lose their terminal seniority
because they hadn’t showed up for work as of January 10"?
A. No, sir, they did not. They were original members on our
board, so they had already established that terminal seniority
with us.
Q. And, in fact, once Nance’s name was on there, he had
established, terminal seniority also; hadn’t he?
A. Yes, sir.
Q. And his name would never be taken off a seniority list;
would it?
A. There are circumstances where it could be, under
discharge or retirement, things like that, yes.
Q. I think the rule is discharge, voluntary quit, or on layoff
for more than seven years.
"THE COURT: Is that a question?
By Mr. Moen:
Q. Yes. Is that the rule?
A. I’m not certain about the seven years.
adie
[p.189]
Smyrna, Tennessee.
59a -
Q. How long have you been a driver in automobile transport?
A. About 21 years and 3 months, I’m sorry, 20 years and 3
months.
Q. And are you presently still employed with Cassens?
A. Yes, I am.
Q. Do you Know what number you are on the seniority
board?
A. I’m currently number 5.
Q. Do you know where David Garrison would be had he
come to Smyrna in June of 1996 in relationship to you on the
board? Would he be one notch above you?
A. I think he would be two notches above me, Mr. Garrison,
I believe, would be number 3 or 4.
Q. And that would bump you down a notch?
A. Correct.
Q. All right. And were you employed at Smyrna, Tennessee,
with Allied in October, November of 1994, when the
committee decision came down and drivers were given the
choice to transfer from Allied to Cassens or Commercial
Carriers?
A. I was given the choice, and I chose Cassens Transport.
Q. And at the time that you chose Cassens, were you off
[p. 190] on a work related injury?
60a
A. Yes, sir, I was. —
Q. How long had you been off at that time?
A- Approximately four months.
Q. And what was your injury? -
A. Rotator cuff on the left shoulder.
And did you injure that while you were loading cars?
> ©
Yes, sir, I did, with Allied Systems.
Is the car-haul business -- would you say it’s a somewhat
dangerous occupation for truck driving?
©
A. Very much so.
Q. Are there a fair number of injuries?
A. Overabundance of injuries, yes.
Q. And is that caused by the nature of the car-haul business,
itself?
A. True. It’s a dangerous occupation.
Q. Allright. At the time that you elected to follow the work
_to Cassens, did you notify Mr. Edwards of your choice?
A. Yes, sir, I did.
6la
Q. Did you have any contact with Cassens notifying them that
you wanted to follow the work, or did it all go through
Allied?
A. No, sir, I did not.
Q. All right. So you were off on work comp, you [p. 191]
elected to go to Cassens, and then what happened next?
A. Well, that was prior to Allied Systems losing their
business when their contract was up. When it was up and
everyone went to Cassens that chose to go, they had an
orientation. And by the word of mouth contact of my friends
that was employed with Allied Systems, they told me I had
better go over there and talk to them people.
Q. All right. It wasn’t Cassens that notified you. It was
through word of mouth from a friend?
A. Correct.
Q. And you went over to Cassens, and you filled out their
paperwork, and you applied for the job?
A. Correct.
Q. And you notified them in that paperwork that you were off
on a work related injury and you could not work. Isn’t that
true?
A. Nothing was made out -- no, not in paperwork. It was a
verbal. I advised them that I was off.
62a
Q. And it was certainly clear -- you made it clear to Cassens
that you were unable to pass a DOT physical and drive a truck
in November of ‘94?
A. That is correct. I was still under a doctor’s care.
Q. And you, in fact, did not take a driver’s test in November
of 1994; did you?
A. No, sir, I did not.
[p. 192]
Q. And why was that?
A. Because I had not been released from the doctor to
perform any duties.
Q. Did anyone at Cassens or Allied or Local 327 tell you that
you had a 30-day window that you needed to show up for
work or you would lose your right to transfer to Cassens?
A. No, sir, they did not.
Q. Did you, in fact, then later start pulling a load for
Cassens?
A. Yes, sir, beginning January the 9" of 1995.
Q. And that was the first load that you pulled for them?
A. Yes, sir.
Q. When did the doctor release you and give you a medical
release that was adequate for you to return to work?
A
63a
_I believe it was in the first week of January when I
actually got my release.
Q. And took it to Cassens and -
A. Pardon?
Q. Did you take it to Cassens and show them that you-had the
re
A
Q.
[p.
©
y+
Q
A
a
Q
lease?
. Yes, I did.
Then you had to take the DOT physical?
238]
. I did. -
This second medical release?
I did.
Did you give it to Mr. Clark?
Yes, I did.
. Did he read it?
. I suppose he did, He looked at it, and he said, “This is not
valid release.”
. What did you say then?
64a
A. Well, he added, he said, “You’re going to have to be
checked by our doctors.” He said, “This release doesn’t mean
anything.”
I said, “Well, the man that wrote this release is a spine
surgeon. In fact, he is the patent-holder on the drill that drills
the holes in your back -when you go through a back
operation.”
He said, “I don’t care who he is. You’ve got to see our
doctor.” I said, “Well, I’m ready right now.” I had offered
several times in the first meeting and this meeting. “I’m ready
to take a DOT physical now.” I drove a truck to the hearing.
Q. On this July 12"--
A. Yes, sir.
Q. An 18-wheeler when--
A. And. I had a valid DOT physical in my pocket. I had
[p.239] already been cleared. Had got it when I was in
Columbia by another doctor.
Q. Did you also have at this July 12 prehearing those two
letters that were signed by Firkus?
A. Yes, sir.
Q. So when Mr. Clark saw your medical release and the
documentation from Firkus, did he say, “Well, okay, we will
have to put you back to work?”
A. No, sir, there was-- that meeting lasted about an hour or
so. And the gist of the conversation was, you know, why
65a
didn’t you call us, why didn’t you send a letter, this medical
release isn’t good enough, you are going to have to gef a
release from your doctor; by the way, sign this piece of
paper, we want all your medical files from Allied before we
go any further.
And I really objected at that point, I said, “This meeting
is about seniority. It’s not a matter about whether I’m fit to do
the job or not, even though I’m ready to take a physical and
prove it.” And he said, “well we ain’t going to do it.” And at
that--
Q. Did you-- I’m sorry, go ahead.
A. At that point, I had missed about $7,000 worth of
Q. In between these two dates?
A. In between the June 11th and the July 12th date, [p. 247]
to have to get their doctor, but the main point was that I had
never made election, which was just clearly patently untrue.
Q. In between August and November, did anyone tell you
that they were advancing some 30-day rule or some 30-day
window of opportunity that you had missed?
A. I had never heard about a 30-day rule until I got out to
Dana Point in November.
Q. Did you submit your packet of information? I think we
looked at it-- I have forgotten-- Exhibit 9-- no-
A. Number 8.
66a
Q. Yeah, Exhibit 8, your presentation that we looked at, did
you submit that to Mr. Neal prior to going to Dana Point so
he could look at it to give you any suggestions or advice on
what information or evidence you could put in?
A. Yes, sir.
Q. What did he tell you?
A. He said, “Looks like you’ve got it all summed up.”
Q. And in the presentation that you prepared for this Dana
Point hearing, was there anything in there about the 30-day
rule?
A. No, sir.
Q. Why?
A. Didn’t know about it. I didn’t know they was going to use
a 30-day rule; never heard of it. It was invented.
[p. 248]
Q. You show up.at Dana Point, California, and Mr. Clark is
there; correct?
A. Yes, sir.
Q. And he gives you some committee decisions?
A. Yes, sir.
Q. And he walks off?
4
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67a
A. Yeah, we met him out in front of the hotel. I saw him
there. And he handed them to Jimmy, and Jimmy handed
them to me, and he said, “What do you think?”
Q. Well, did Mr. Clark, when he gave them to you, did he
say, “Well, we are relying on the 30-day rule, Mr. Garrison
or Mr. Neal?” Did he say that?
A. No, sir. He said -- best of my recollection, he said,
“Jimmy, we’re going to use these cases in Mr. Garrison’s
case.”
Q. When was the first time you heard those words come out
of some human being’s mouth, that there was a 30-day rule
that precluded you from employment with Cassens?
A. Joe Clark.
Q. When?
A. In the meeting.
Q. In the testimony part of the meeting?
A. Yes, sir. He never said, “You know about the 30-day
rule; we’re going to use it.” He merely gave us the cases. But
you asked-- my question was, the first time I heard [p. 249]
it.
Q. Yeah, right.
A. Was the-- was in-- his presentation to the committee.
68a
Q. And these committee decisions that he gave you, did any
of them talk about a 30-day rule that would cause somebody
to lose their seniority rights on a seniority board?
A. No, sir.
Q. What did you think the cases meant?
A. I was really dumfounded why he was putting them in
there. I had read them at lunch the day before and looked at
it. They had no relevance.
They were talking about people being transferred,
intercompany; like if I was working at Auto Convoy going
from Dallas to Houston to Albuquerque. It had nothing to do
with putting two companies together on what we call 54-C.
Q. I’m sorry. Did Mr. Neal at any point at Dana Point say,
“Oh, well, Dave, it’s because of the 30-day rule; that’s what
these cases are about?”
A. No.
Q. Did Mr. Neal ever tell you that there were other drivers
back in this October *94 time frame who were off on work
comp, who got to transfer, and no 30-day rule applied
[p. 250] to them? Did Mr. Neal tell you about that?
A. No, sir.
Q. Did Mr. Neal ever tell you that there was never a 30-day
rule posted anywhere at Allied or Cassens?
A. No, sir.
69a
Q. And when you testified at Dana Point, was Mr. Neal still
with you?
A. He was there at the table with me, yes, sir, side by side.
Q. Why was he there?
A. He’s my representative; he’s my union representative.
Q. And what’s your understanding of his obligation as a
union representative in a hearing?
A. He -- his first obligation is to research the case and get as
much background in the case and as much history through
prior decisions that he can, and to aid the grievant into
preparing the case.
But more than that, he’s there to present the case to the
committee and bring out facts that can make the committee
knowledgeable of facts in this particular, or any particular
grievance.
Q. Do you believe it was reasonable to expect that he would
know the contract and know the prior committee decisions
better than you?
[p. 393]
right?
A. Well, that’s not really the way it happened, Mr. Mercado,
no.
70a
Q. Okay. Didn’t Mr. Neal tell the company to put you in the-
-on the seniority list, put you to work?
A. I’m referring to the question. You asked me a question
back. You said: Didn’t he take you to Smyrna and have a
meeting. And that’s not the way it happened. I’m sorry.
Q. I’m sorry, I know. You drove yourself over there and he
drove over there; correct?
A. No, sir. He and Mr. Firkus had a meeting prior to our
mutual meeting, and he had already left the terminal. And I
called him on the cell phone, and he came back to the
terminal.
Q. Okay, But do you know whether or not he was even
meeting about your situation? There are other drivers there.
He could have been talking about any other thing; right?
A. No, sir, I know it because he and both Mark Flett said that
they talked to Mr. Firkus about my deal, about my situation.
Q. Okay. Now, you did, however, then go back and talk to
them-- to the company about your situation with. Mr. Neal;
correct?
[p. 394]
A. When I was at the motel, I found that Mr. Neal was
already at the terminal having a meeting with Mr. Firkus, I
went to the terminal, and Mr. Neal had already left.
I immediately called him on the cell phone, and he
evidently-- just two or three blocks away-- returned to the
Tila
terminal. And that’s when we had the meeting, my first
meeting, with Mr. Firkus about this seniority problem.
Q. Okay. And isn’t it true that he said that you should be put
onto the company’s seniority list?
A. Yes.
Q. And, of course-- and that was your position, too; correct?
A. Yes, sir.
Q. And, of course, the company’s position was that you had
never been on the seniority list; correct?
A_ Yes, sir.
Q. And Mr. Firkus then further said that he would have to
contact Mr. Joe Clark, the company’s director of labor
relations, to determine the company’s official position with
respect to your claim; correct?
A. Yes, sir.
Q. Okay. Now, you had known Mr. Firkus from before;
correct?
A. Yes, sir.
Q. When Allied and Cassens used to share a terminal back
* * *
72a
[p. 474]
A. Okay. All right.
Q. And does this exhibit have Mr. Dickerson’s name on it?
A. Let me review it a minute.
Q. Sure.
A. Yes, sir. He’s listed in the spot where I would be, number
6.
Q. And if you follow Mr. Dickerson’s line over, does it have
a date on there that actually is your company seniority date?
A. Sure does.
Q. What date is that?
A. 9/25 of ‘80.
Q. And you are certain that’s not Mr. Dickerson’s?
A. I have served with Mr. Dickerson since when he —
10/10 of ‘80. And we’ve been on many bids, and we’ve
served in many terminals. You always know the people
around you because the terminal seniority is so important,
who’s picking first and who’s choosing what first. No, I know
Chuck’s date.
Q. All right. If we look at Exhibit 7, first page-
A. Okay. |
73a
Q. -- January 10, 1995. Is Mr. Dickerson’s name on this one?
A. It is.
[p. 475]
Q. And the seniority date, is it yours or his?
A. That’s my seniority date. He’s in my slot, number 6. You
can look back to the other evidence in the defendant’s book-
MR. MERCADO:~ Objection, Your Honor. There
is no question pending.
THE COURT: Sustained. There is no question
pending, Mr. Garrison.
THE WITNESS: I’m sorry.
By Mr. Moen:
Q. Turn back to our Exhibit 5, terminal seniority list,
November 15, 1994. Mr. Dickerson’s name is not yet on
there; is it?
A. No, it isn’t. No, sir.
Q. All right. One of the things that Mr. Mercado pointed out
was that you had, for some period of time, worked for Allied
during the time frame that we made a claim for damages for
your -- for your fringe benefits and insurance and retirement,
correct?
A. Yes, sir.
74a
Q. And did you inadvertently include some months for which
Allied did provide payment in our damages calculation?
A. Yes. The way he asked the question, he asked for other
trucking. And when he said “other trucking,” I assumed he
was not talking about car-haul, so I didn’t-
* * *
[p. 492]
Q. Right. This is Exhibit A. I think you have another version
of it in purple there from Cassens. Are you familiar with this
National Master Automobile Transporters Agreement;
correct?
A Yes, I am.
Q. For the ‘95 to ‘99 time frame?
A. Yes, I am.
Q. Is there anything in this document anywhere that states
that there’s a 30-day rule requiring a driver to show up for
work or have his name taken off the seniority board?
A. Not to my knowledge.
Q. Do you know of any National Committee decisions prior
to Dave Garrison’s case that ever ruled that a man lost his
terminal seniority rights if he failed to show up within 30
days?
A. I never saw any until that day.
75a
Q. And during this time frame that you were- well, were
you at Smyrna, Tennessee in ‘94, or did you come there in
‘95?
A. Came there in ‘95.
Q. Allright. During the entire time frame that you have been
with Local 327, have you had occasion to go to the Smyrna,
Tennessee, terminal?
A. Yes, sir.
Q. Have you ever seen posted anywhere any 30-day rule, [p.
493] requiring a driver to show up for work or lose his
seniority rights?
A. No, sir.
Q. Are you aware of any driver that was ever notified that he
must show up within 30 days or lose his terminal seniority
rights?
A. Since that point?
Q. Prior to Dave Garrison’s case.
A. No, sir.
Q. Do you know of any driver other than Dave Garrison
prior to November of 1996 who ever lost his terminal
seniority rights
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