# Petition for Writ of Certiorari — Garrison v. Cassens Transport Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0760%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 540 U.S. 1179 ## Text 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 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 rs ; 4 4 3 “> 4 ie | ; ¢ ; 4 x 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 because he failed to show up for work within 30 days? A. I didn’t keep up with that prior to 1996 because I wasn’t an agent, but I didn’t know of any, no, sir. 76a Q. Okay. After the Dana Point hearing, you got a copy of that decision; correct? A. Yes, sir. Q. Did you think it was fair? A. I didn’t understand it, no, sir. Q. Did you think it was unfair? A. Yeah, | did, but a lot of decisions that I hear and get, some are fair and some are unfair, and I just take them as they come. Q. Why did you think this one was unfair? * * * APPENDIX H DANA POINT DECISION (Garrison v .Cassens Transport Co.) NATIONAL AUTOMOBILE TRANSPORTERS JOINT ARBITRATION COMMITTEE ~ (NATJAC ) NATIONAL JOINT STANDING SENIORITY COMMITTEE" ( NJSSC ) Held: Tuesday, Wednesday, and Thursday November 5, 6, and 7, 1996 : Laguna Cliffs Marriott Resort Hotel Dana Point, CA 92629 NJSSC No. 11-96-(9-96)-38 David L. Garrison, Member of Teamsters Local No. 327 and Local Union No. 327 ( Nashville, TN ) V. Cassens Transport Co. ' 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 & the Dana Point Decision of 1996. T7a 78a NJSSC HEARING PANEL’ Employer Co-Chairperson Union Co-Chairperson R. Ian Hunter’ James D. Jackson‘ * The bolding of type did not appear in the original document, but is provided to direct the attention of the reader to the significant items and that these people were the authors and/or participants of the Avon Lake Decision written in 1992, four (4) years prior to this decision. By keeping silent and not invoking the standard established by the Avon Lake Decision of 1992, Local 327 did violate the” minimum levels of integrity” standard established by Hines yv. Anchor, 424 U.S. 554, (1976). > R. Ian Hunter, was the Employers Co-Chairperson, of both the Avon Lake Decision of 1992, and this Dana Point Decision of 1996. 4 J. D Jackson, was Secretary-Treasurer of Teamsters Local Union No. 299 in 1992. The E & L worker who was on workers’ compensation, due to an on-the-job injury, was a member of Local No. 299, referred to in Avon Lake Decision of 1992. 79a Employer Panel Members Union Panel Members Ron Borges” Charles Lee® ‘ William Hadley’ Timothy Lehman Tony LaBue Fred Zuckerman Based on the facts presented, the Commitice finds as follows: 1. Mr. Garrison made timely request to Cassens for employment consistent with this Committee’s prior decision (Case No. 10-94-80 I-A) and this request was acknowledged by Cassens’ terminal manager. 2. However, Mr. Garrison was not actively working at the time the work in question was transferred from Allied to Cassens, due to an on-the-job-injury suffered in 1990 3. As a result of this injury, Mr. Garrison did not make himself available for work until June 1996. 4. Prior decisions of this Committee require that employees who follow their work under these circumstances make > Ron Borges, was a Panel Member of both ihe Avon Lake Decision of 1992, and this Dana Point Decision of 1996. 6 Charles Lee, BA for Teamsters Local Union No. 299 in 1992, appeared on behalf of Teamsters Local No. 299., and represented the interest of the E & L Woodhaven Drivers’ during the Avon Lake Decision of 1992. ’ William Hadley, was a Panel Member of both the Avon Lake Decision of 1992, and this Dana Point Decision of 1996. i F : 80a themselves available for work within thirty days after expressing their desire to do so.® 5. Because Mr. Garrison failed to make himself available to work for Cassens within thirty days after expressing his desire to work for Cassens in November of 1994, his rights to transfer were extinguished. 6. Mr. Garrison retains his seniority with Allied as a laid off employee and enjoys additional help rights opportunities that may arise with this company. Signed: R. Ian Hunter, Employer Co-Chairperson James D. Jackson, Union Co-Chairperson —_ 8 Not True...The prior Avon Lake Decision of 1992, authored by many of these same Committee Panel Members, who are the very people that established the standard and instructed Companies as what to do, when an employee is off work due to an on-the-job injury, and when under Article 5, Section 5, (a), of the National Contract, (NMATA), the employee elects to “Follow The Work” to the surviving company. APPENDIX I Transcript Excerpt July 12, 2001 District Court ruling on Defendant’s Rule 50 Motion [p. 808] investigate, itself, does not rise to the level of a breach of the duty of fair representation for purposes of the arbitrary prong. - And that’s Hines vs. Local Union Number 377. Negligence, again, and poor judgment is not enough. They made a judgment in Dana Point to go forward. Now, had Mr. Neal just ignored those cases and -- that would have been a different situation, but the evidence is that he read those cases, and he made a judgment that they weren’t applicable; same thing as Mr. Garrison, both of them knowing that they could have postponed the case. And, like I said, failure to investigate is not in and of itself a basis of breach of the duty of fair representation. So given that, how does that taint the decision? THE COURT: Can I run a copy of -- just of the front of this and give it back to you? I promise I won’t read the back. MR. MERCADO: I have a clean one. 8la 82a THE COURT: Do you have a clean copy? MR. MERCADO: Yeah, I have got a clean one. THE COURT: Okay. Be back shortly. We are in recess. (Break at 4:10 p.m. Reassembled at 4:45 p.m.) THE COURT: On the defense motion for judgment [p.809] as a matter of law, which has been renewed, the standard on such a motion under Rule 50, no matter when it’s made, is that there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. The Sixth Circuit standard requires that the -- that the evidence be viewed in the light of those inferences most favorable to the nonmovant; here, the plaintiff. And I must find that there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable persons could differ. “The court should neither weigh the evidence, evaluate the credibility of the witnesses, nor substitute its judgment for that of the jury. It is only when it is clear that reasonable people could come to but one conclusion that this motion should be granted regardless of whether the trial judge might have reached a different conclusion were he or she the trier of fact.” And the Supreme Court in a 2000 decision, Reeves v. Sanderson Plumbing, says that the standard for judgment as a matter of law mirrors the standard for summary judgment under 56. All reasonable inferences are to be drawn in favor 83a of the nonmoving party, making no credibility determinations or weighing any evidence.” In examining the hearing transcript in California, it seems to me that a reasonable jury could have found that -- [p. 810] and this makes a lot more sense to me, having thought through it, than my initial feeling that they had to have found -- and I guess I coupled this with -- I was influenced by their punitive damages finding. I thought that they had to have found the bad faith prong on the duty of fair representation. But the more I consider this and the more I look at the hearing transcript, the more I feel that a reasonable jury -- and also in the time frame that they did it, in an hour and a half, they could have gone back and read that transcript of the California hearing and found that the prong that they were going to go on here was the arbitrary prong; that the union acted arbitrarily when its action taken on behalf of an employee or its failure to take action on behalf of an employee in light of the circumstances is so far outside a wide range of reasonableness as to be irrational. This is how I feel the jury could have seen the evidence. The presentation at the grievance hearing -- the company’s presentation is made by Joe Clark, who is one of them, who sits on these committees. He probably knows everybody on the committee, and there is evidence in the record to the effect that Mr. Clark sits on all these committees. So he -- the jury reasonably could conclude Mr. Clark had lots of credibility with these folks. Mr. Clark comes [p.811] 84a in and talks about all these 30-day decisions, presents them to the committee. Mr. Neal, who is the representative of this worker, Mr. Garrison, says nothing in rebuttal about those cases. The only person who discusses them at all is Mr. Garrison who’s a total novice, who’s just gotten them two days ago, and has virtually no credibility with the committee, certainly not an edge like Mr. Clark has. I’m talking about reasonable inferences that a jury can draw from the evidence in the record. The only rebuttal on those cases is from Mr. Garrison. Mr. Neal is mute on those cases; he says nothing. And the suggestion I think they are entitled -- they would have been entirely reasonable to reject the suggestion of the defense that somehow the dashes that appear in the transcript indicate that maybe the transcript is inaccurate. There are dashes throughout this transcript. They are obviously indications when someone is pausing, and I think it’s very reasonable for them to conclude this is the entire thing that Mr. Neal said. So not only dees Mr. Neal, who also would have much more credibility with the committee than Mr. Garrison, says nothing to rebut these cases, but also the only argument about the contract which Mr. Neal helped negotiate, and the fact that seniority can only be terminated in these three [p. 812] ways, that legal argument that the managing agent, the union representative, should have known a whole lot more about than this man all by himself, this worker, the only legal argument on the contract is made by Mr. Garrison. 85a And Mr. Neal doesn’t even shore it up. He doesn’t even say, “Absolutely right, seniority can only be terminated these three ways; these cases are junk, they do not apply here.” He leaves this man hanging out there to make legal arguments on these decisions and on the contract. And it seems to me that despite the fact that Mr. Garrison did not request a continuance of the hearing so that he could get more materials together, I think the jury could have inferred that Mr. Neal breached the duty of fair representation in an incredible way because he didn’t help this man at all at this hearing. There didn’t need to be a continuance. Mr. Neal could have represented him at the hearing. He didn’t do anything at the hearing. If you read the transcript, Mr. Neal did nothing. And the fact that the company’s case was presented by Mr. Clark, who has lots of credibility, lots of experience with these people, and the only arguments on the merits, really, that were made at the hearing were made by Mr. Garrison, who has no credibility, no history with these people, and the person who would have that credibility and [p. 813] history with these people is Mr. Neal, and he stands by mute, that says to the committee, “Look, I don’t care what happens to this guy,” or “He’s wrong and I don’t want to make him look bad,” or who knows what it says to the committee, but it seems to me that it is entirely reasonable for this jury to infer that this is within the -- so far outside a wide range of reasonableness as to be irrational. So I think that whether or not they bought all the suggestions of collusion and ill motives on the part of Neal and Mr. Neal wanting to protect the: union and all that, whether they bought any of that -- and that may, in fact, be t f ft i f - 86a conjecture, as Mr. -- I just have a mental block today, I’m Sorry - MR. MERCADO: Mercado. THE COURT: -- Mercado wants to state that may well be conjecture, but I think it is not conjecture, and it is within reason for the jury to have inferred from the evidence in this record arbitrary conduct, and that that very conduct which was So arbitrary as to be irrational affected the outcome. That if Mr. Neal had made these arguments and rebutted those cases and talked about the contract and the ways in which you breached seniority, if Mr. Neal had made those arguments, that it might well have changed the outcome of the grievance proceeding. [p. 814] So for all those reasons -- and with regard to the punitive damages, first of all, they are not out of proportion to the back wages that have been awarded. They’re not out of proportion. | And it seems to me that if there’s anything that is a jury question, it is whether the conduct of the company in this case was Outrageous or egregious. And there is plenty of evidence in the record from which this jury could and did find that their conduct with regard to Mr. Garrison was outrageous and egregious. There was evidence that Mr. Firkus originally stated that his signature was a forgery; they could have believed that testimony. i mee ee es ee ee eee — 87a And that then when confronted, with it, “Oh, I don’t remember”; the business of Mr. Garrison’s company date or terminal date being on one of those lists opposite the name of Mr. Dickerson, that it didn’t coincide with; the -- the not raising the 30-day rule atthe prehearing, raising it when Mr. Garrison wasn’t present; only providing him with these decisions two days before, when the contract says that when you are going to rely on decisions, you get them to them as soon as possible, it seems to me there is enough evidence in this record that the jury could have reasonably found that the company’s conduct was outrageous or egregious. [p. 815] So I am going to deny the motion and leave the jury’s verdict as it is. c The other outstanding issues, I guess, are attorney’s fees. Is there anything else outstanding? MR. MOEN: Reinstatement, Your Honor. THE COURT: Reinstatement. I am not going to find joint and several liability. I do not find enough evidence of collusive conduct between the union and the company. I’m not going to make joint and several liability. And the attorney’s fees can only be awarded if the common benefit exception applies or the bad faith exception, and I guess I’ll let you both argue those points on attorney’s fees. You want to argue that now? MR. MOEN: Yes, Your Honor. I think on the common benefit doctrine, if I understand that correctly, now that would 88a probably not be applicable. It seems to me to be in the nature of a class action type of scenario, which we do not have. We could argue that through the efforts of Mr. Garrison, the 30-day rule has been substantially stricken or weakened in the eyes of the company such that it may not be enforced, but I’m not sure that fits into that exception. The bad faith exception may be more appropriate, and that would be a question for you to determine based on the evidence that you have heard, whether the defendant acted in 2 Kk APPENDIX J See Fold Out Exhibit Footstool Diagram 89a pamo]foy Sa.mpa01g yov.uoesd Fair and Honest Grievance Hearing Footstool of Integrity UAT uo - : ; I 90a A Fair and Honest Hearing The Footstool of Integrity “The Minimum Standards” 1. Essential Information Given 2. Contract Procedures Followed 3. Advocacy for the Grievant Essential Information Given 1) The Union shall provide to the Employee, prior to the first meeting with the Company, all charges that the Company is bringing against the Employee. 2) The Union shall provide in writing the identity of every Article and Section of the Collective Bargaining Agreement that are relevant to the charges brought against the Employee. 3) The Union shall provide to the Employee, prior to the first meeting with the Company, all relevant prior Committee decisions concerning the subject matter contained within the grievance. 4) The Union shall provide to the Employee the Union’s Internet Website, if available, along with: 9la a) A complete copy of the Collective Bargaining Agreement, with a search engine; b) Complete listing of all prior Committee decisions, with a search engine. Contract Procedures Followed 1) The Union shall provide to the Employee, a complete set of the rules of procedure for each grievance level or each Arbitration Committee level grievance. 2) The Union shall require that all procedures which govern grievances which are listed in the Contract are followed. 3) The Union shall utilize the grievance procedures available in the Contract to obtain all information that_ could reasonably assist the grievant. Advocacy for the Grievant 1) Prior to the first meeting with the Company, the Union representative for the Employee will meet with the Employee and discuss strategy and information available to the Union with respect to the grievance. 2) The Union representative shall make reasonable efforts to follow up on information in its possession or information from the grievant to substantiate the grievant’s case so that the Union may be prepared for the hearing. 3) The Union representative shall, in all cases, put forth an argument on behalf of the Employee at any 4) 92a grievance hearing, and shall make a good faith effort to put forth the best argument available based upon the facts and applicable prior Committee decisions. On or before the first meeting with the Company, the Union representative shall meet with the Employee to make the Employee aware of the argument that the Union representative will be making on his or her behalf at the grievance. - APPENDIX K NATIONAL NEGOTIATING COMMITTEE MEMBERS of the NATIONAL MASTER AUTOMOBILE TRANSPORTERS AGREEMENT and the CENTRAL and SOUTHERN AREA SUPPLEMENTAL AGREEMENT 94a NATIONAL MASTERS AUTOMOBILE TRANSPORTERS AGREEMENT NEGOTIATING COMMITTEE! FOR THE LOCAL UNIONS: Teamsters National Automobile Transporters Industry Negotiating Committee Ron Carey, Chairperson Rondal Owens, Co-Chairperson Bennie Goodwin Charles Lee’ Ronnie Greene Tim Lehman? Paul Houck Ken Mee J. D. Jackson‘ Jim Roberts ' 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 & the Dana Point Decision of 1996, having prior knowledge of the Avon Lake Decision of 1992. Charles Lee, was a Panel Member on the Dana Point Decision of 1996. Charles Lee, represented the E & L worker off on worker’s compensation in the Avon Lake Decision of 1992. > Tim Lehman, Panel Member on Dana Point Decision of 1996. 4 J. D Jackson, was Secretary-Treasurer of Teamsters Local Union No. 299 in 1992, The E & L worker who was on workers’ compensation, due to an on-the-job injury, was a member of Local No. 299, referred to in Avon Lake Decision of 1992. J.D. Jackson, was also Co-Chairperson, on Dana Point Decision of 1996. 95a NATIONAL MASTERS AUTOMOBILE TRANSPORTERS AGREEMENT NEGOTIATING COMMITTEE” FOR THE EMPLOYERS: National Automobile Transporters Labor Division (NATLD) R. Ian Hunter, Chairperson® Ron Borges’ A.J. Kosak > The bolding of type does not appear in the original document, but is provided to direct the attention of the reader to persons who participated in the Dana Point Decision of 1996, having prior knowledge of the Avon Lake Decision of 1992. ° R. Ian Hunter, was the Employers Co-Chairperson in both the Avon Lake Decision of 1992 and the Dana Point Decision of 1996. 7 Ron Borges, was a Panel Member in both the Dana Point Decision of 1996, and the Avon Lake Decision of 1992. Sian 8 oS Sat ne eae | 96a Allen Cassens® Anthony LaBue’ William P. Hadley’® Jack Nelson Charles Johnson Dan Sandy, Jr. * Allen Cassens, of Cassens Transport Co., by and through his Labor Relations Representative, Mr. Jim Walker, asked for clarification as to how long the Company (Cassens) was obligated to afford work at the Avon Lake facility to the E & L worker who was on workers’ compensation, due to an on-the-job injury, referred to in Avon Lake Decision of 1992: “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.” ” Anthony LaBue, was a Panel Member in both the Dana Point Decision of 1996, and the Avon Lake Decision of 1992. '° William Hadley, was a Panel Member in both the Dana Point Decision of 1996, and the Avon Lake Decision of 1992. 97a CENTRAL and SOUTHERN AREA SUPPLEMENTAL AGREEMENT NEGOTIATING COMMITTEE" FOR THE UNIONS: Charles Lee, Co-Chairperson” Robert Cummins, Co-Chairperson Roy Atha Walter Lytle Rocky Blevins Howard Molpus Gary Coker Jimmy Neal’ Bob Eliser Kenneth Nelligan George Foster James Ramirez Mark Frey George Saunders Benny Goodwin Edward Sherman Ronnie Greene Harold Simmons J.D. Jackson'*” Michael Sweeney '' The bolding of type does not appear in the original document, but is provided to direct the attention of the reader to persons who participated in the Dana Point Decision of 1996, having prior knowledge of the Avon Lake Decision of 1992. '2 Charles Lee, Pane! Member on Dana Point Decision of 1996. '? Jimmy Neal, President and Business Agent of Teamsters Local Union No. 327, did not provide any assistance to Garrison in the preparation of Garrison’s defense before the Dana Point Committee Hearing of 1996. '¢ J. D Jackson, was Secretary-Treasurer of Teamsters Local Union No. 299 in 1992. The E & L worker who was on workers’ compensation, due to an on-the-job injury, was a member of Local No. 299, referred to in Avon Lake Decision of 1992. 'S J. D Jackson, was also the Co-Chairperson of Dana Point Decision of 1996. Robert Jaggers John Thyer Johnny Johnson Earl Walker Tyson Johnson Fred Zuckerman”® ‘6 Fred Zuckerman, Panel Member on Dana Point Decision of 1996. 99a CENTRAL and SOUTHERN AREA SUPPLEMENTAL AGREEMENT NEGOTIATING COMMITTEE” FOR THE EMPLOYERS: James D. Osmer, Chairperson Perchie Adkins Ron O’Reilly Todd Barnum Kevin Pitts Robert Bertrand Ronald Risher Gordon Birdsall Daniel Sandy, Jr. Ronald Borges"® Daniel Sandy, Sr. William Carlisle Ed Sherrick Joe Clark” Eugene Sobie '’ The bolding of type does not appear in the original document, but is provided to direct the attention of the reader to persons who participated in the Dana Point Decision of 1996, having prior knowledge of the Avon Lake Decision of 1992. 'S Ronald Borges, Panel Member on the Avon Lake Decision of 1992, and Panel Member on the Dana Point Decision of 1996. '° Joe Clark, Labor Representative for Cassens Transport Co. during 1996, having first hand knowledge of the Avon Lake Decision of 1992, by his silence lied to Garrison at the first Local Hearing conducted in July of 1996. Joe Clark was also the respondent for Cassens Transport Co. during the Dana Point Committee Hearing in 1996, and by his silence testified falsely before the Dana Point Committee of 1996. 100a Arland Corder James Walker” Curtis Goodwin Jack Watkins © James Walker, Labor Representative for Cassens Transport Co. during the Avon Lake Committee Hearing of 1992, Walker asked the Avon Lake Committee for clarification as to how long the Company (Cassens) was obligated to afford work at the Avon Lake facility to an E & L Lorain driver who was presently on a leave of absence due to an on-the-job injury. Si i i APPENDIX L UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION Case No. 3:98-0415 VOLUME IV DAVID L. GARRISON, Plaintiff, ¥. and CASSENS TRANSPORT COMPANY, ) ) ) ) ) LOCAL 327 TEAMSTERS UNION) ) ) Defendants. ) ) TRANSCRIPT OF PROCEEDINGS DATE: JULY 12, 2001 TIME: 9:00 A.M. BEFORE: THE HONORABLE ALETA A. TRAUGER 10la 102a COURT REPORTER: BEVERLY “BECKY” COLE, RPR CCR OFFICIAL COURT REPORTER U.S. COURTHOUSE, A-837 801 BROADWAY NASHVILLE, TN 37203 (615) 726-4955 [p. 742] contrary to the terms of the collective bargaining agreement, he may file a grievance with the union. The union, as the employee’~ exclusive bargaining agent, has the duty to file, investigate, and process that grievance. The union has a wide range of reasonableness and discretion in determining whether and how far to process a grievance. To show that the union breached its duty of fair representation, the employee must prove that the union’s actions or inactions constituted more than mere negligence or poor judgment. The union breaches its duty of fair representation when its decisions relating to an employee’s grievance are arbitrary, discriminatory, or made in bad faith. Arbitrary conduct is action taken without reason or judgment or the refusal to take action without reason or judgment. A union acts arbitrarily when its actions taken on behalf of an employee or its failure to take action on behalf of an ee 103a employee in light of the circumstances is so far outside a wide range of reasonableness as to be irrational. Examples of arbitrary conduct include things like: one, failing to act on an individual employee’s complaint, [p. 743] despite having the past practice of always vigorously pursuing that particular complaint on behalf of other employees; Two, agreeing to drop one employee’s complaint if the employer agrees to what another employee wants; Or, three, refusing to enforce a right on behalf of an employee, a right that the employee has because of a clear, unambiguous provision of the collective bargaining agreement, or a provision that through past practice the union and the employer mutually understand provides the employee with that right. Those are merely examples. To discriminate means to treat unequally. A union has the duty to protect equally all those employees that it represents, That is, a union must treat similarly situated employees in the same way. A union, may not discriminate on the basis of some characteristic over which the employee has no control, such as race or gender, nor may a union discriminate on the basis of any factor not relevant to wages or working conditions. A union exhibits bad faith when it acts or fails to act out of hostility, ill will, or political opposition toward a particular employee it represents. Bad faith implies the conscious doing of a wrong. 104a [p. 746] the fault of each. The employer is responsible for damages caused solely by its breach of a contract. The union is responsible for any increase in damages resulting from the violation of its duty of fair representation. The plaintiff also claims that he is entitled to punitive damages, which are sometimes awarded in order to punish a defendant for some extraordinary misconduct and to serve as an example, or warning, to others not to engage in such conduct. You may only award punitive damages against the defendant Cassens Transport Company in this case if you find that its conduct was outrageous or egregious. Cassens’ simple breach of the collective bargaining agreement does not warrant an award of punitive damages. I’ve given you instructions embodying various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you find to be the facts. That I have instructed you on various subjects in this case, including that of damages, must not be taken as indicating an opinion of the Court on what you should find the facts to be or on which party is entitled to your verdict. The attitude and conduct of jurors at the beginning * * * , : APPENDIX M CHRONOLOGICAL LISTING Of DFR in GARRISON Vv CASSENS Breach of DFR No. 1. In November, 1994, Defendant Cassens took over the work from Allied Systems at the Smyrna, Tennessee terminal. At that time Garrison was working for Allied. Garrison was notified that he needed to make his election to “follow the work” to Cassens if he chose to do so. Plaintiff was living in Missouri at that time and off on workers’ compensation, recovering from an injury. Garrison contacted Allied with his election to “follow the work” to Cassens. It is undisputed that Garrison also sent a certified letter to the business agent for Local 327: “Would you please follow-up and make sure my name is placed on the seniority roster at Cassens in Smyrna Tennessee, in the order that my terminal seniority affords me?” (R. 236, Exhibit 3 of Defendant’s Exhibit Q, Appendix 835). Nonetheless, Garrison’s name was not on Cassens’ 105a 106a seniority roster and the Union never followed up on Garrison’s request in writing to assure that his name got on Cassens’ list. In November, 1994, Local 327 breached DFR by failing to assure Garrison’s name was placed on Cassens’ seniority list as requested, by Garrison and as required by prior decisions of the National Seniority Committee. (R. 236, Defendant’s Exhibit B, Appendix p. 705). Breach of DFR No. 2. It is undisputed that in January,1995, Jimmy Neal, on behalf of Local 327, testified falsely to the National Committee that all of the drivers had been placed on the Cassens’ seniority list. The list was not complete; Garrison’s name was missing. (For citations see Garrison Brief, p. 8). The Union was liable because the Union failed to assure that Garrison’s name was on the seniority list in November of 1994. This failure caused the loss of Garrison’s seniority. (Garrison Brief, p. 36). Breach of DFR No. 3. In June of 1996, Garrison recovered from his injury and called Cassens’ assistant terminal manager, John Grim, and told him that he was ready to go to work. Cassens’ assistant terminal manager told Garrison his name was not on the list. Garrison then drove from Missouri to the office of Local Union 327 in Nashville, Tennessee and met with business agent Neal and principal officer, Hodkins. Hodkins stated, he did not know how the Union had missed putting Garrison’s name on the list. Hodkins stated “We need to meet with Firkus.” Neal arranged a meeting for the next day between Garrison, Cassens’ terminal manager, Firkus, and himself. However, it is undisputed that the next day, June 11, 1996, Neal left Garrison at his motel room and met secretly with Firkus at the terminal. (Garrison Brief, p. 9). Neal acted in — 107a bad faith by meeting secretly with Firkus regarding the Union’s failure to put Garrison’s name on the list, and thereby breached the Union’s duty to represent Garrison. Breach of DFR No. 4. After Neal’s secret meeting with Cassens’ terminal manager, Cassens continued to refuse to employ Garrison. Garrison filed a Grievance. At the local grievance hearing in July, 1996, Joe Clark, on behalf of Cassens, took the position that Garrison had never notified them that he wanted to follow the work and that he did not have a valid medical release. At this hearing neither Clark nor any other person mentioned any alleged 30-day rule precluding Garrison’s employment. (Garrison Brief, p. 11; R. 280, Tr. p. 240, Appendix 1218). Neal, as business agent for the Union, acted as if he was supportive of Garrison’s position and told him that he should win. However, Garrison lost his grievance at the local level hearing. (R. 263, Appendix p. 213-214). The Union failed to fairly represent Garrison because it refused to take responsibility at the local level grievance hearing for its failure to assure that Garrison’s name was on the Cassens’ seniority list. Because of this, the Union had liability for bad faith as plead in Garrison’s Complaint filed in this lawsuit. (See R. 213, Appendix pp. 71-73). Breach of DFR No. 5. The next level of the grievance process involved a hearing in New Orleans, Neal told Garrison not to bother to attend this hearing. Neal told Garrison he would handle this hearing on his own. (R. 264, Appendix p. 214). Garrison put his trust in Neal. In August of 1996, in Garrison’s absence, Neal met with Clark at the New Orleans Central Southern Committee 108a hearing. Clark advanced for the first time Cassens’ alleged 30-day rule. Clark also discussed prior Committee decisions that he falsely claimed established this rule. (Garrison Brief, p. 12) The National Agreement (hereinafter “NMATA”), part of which Neal was involved in negotiating, requires that Clark provide to Neal Committee decisions he is relying on as soon as possible before the grievance hearing: 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 final presentation of the case to the committee. (Emphasis added). (R. 236, Defendant’s Exhibit A, Article 7, B4, Step 4, page 39) Neal knew about the decisions Clark was relying on, but he did not request that Clark provide him with the decisions. (Garrison Brief, p. 12). Neal breached his duty to represent Garrison by failing to obtain these Committee decisions at New Orleans. Neal’s secret meetings with Cassens’ management, and the invention of the 30-day rule is strong evidence of collusion. The 30-day rule offered the opportunity for both Cassens and the Union to escape liability for Garrison’s loss of seniority. If Cassens could enforce a 30-day rule which required that Garrison show up and be fit for work in 1994, then the Union’s failure to assure that Garrison’s name was on the list would be obfuscated. The facts support the inference that Local 327 and Cassens colluded to destroy Garrison’s seniority rights. Breach of DFR No. 6. There is no dispute that Neal failed to tell Garrison about this new 30-day rule that Clark advanced at the New Orleans hearing. Neal spoke with Garrison every day after the 109a hearing. (Garrison Brief, pp. 12, 13). Neal told Garrison he , lost, but he didn’t tell him why. Garrison then set about avidly preparing for his last grievance hearing which was to be held at the National Joint Standing Seniority Committee (hereinafter “NJSSC”) in Dana Point, California in November, 1996. (Garrison Brief, pp. 12-13; R. 264, Appendix 214). Neal betrayed Garrison by failing to tell Garrison of the 30-day rule after the New Orleans hearing. Neal led Garrison to believe that he was representing him and that he wanted to help him.(Garrison Brief, pp. 34, 35) The jury was certainly free to conclude that Neal intentionally withheld information from Garrison about the 30-day rule because that was the most effective way to protect the Union from liability for its failure to assure that Garrison’s name was on the seniority list. Breach of DFR No. 7. It was undisputed that Neal was a trained professional and sat on the negotiating committee for NMATA. Neal had to know he was required to request copies of committee decisions advanced by Clark: 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 process, all employees who file grievances are entitled to the following rights:... 3. The employer shall provide any pertinent and relevant information identified with reasonable ——— a ae a 110a specificity within fifteen (15) days of receipt of a written request by the local union, steward or grievant. (R. 236, Defendant’s Exhibit A, Article 7, B18, p. 49). Neal returned to Nashville from New Orleans and failed to make a written request for the Committee decisions he knew Clark was going to use in Garrison’s next grievance hearing. Neal thereby violated, the “Grievant’s Bill of Rights” guaranteed under NMATA. Neal again betrayed Garrison. Neal’s failure to protect Garrison’s rights under the “Grievant’s Bill of Rights” standing alone constitutes a breach of the duty to fairly represent an employee under NMATA. Breach of DFR No.8. Between the time of the New Orleans hearing in August of 1996, and the date of the Dana Point hearing in November of 1996,Garrison prepared what he believed was a thorough packet of information to submit at the Dana Point grievance to rebut Cassens’ arguments that he never elected to follow the work and that he did not have a medical release. Garrison gave this information to Neal so that Neal could look through it and make any suggestions about things that needed to be included. Neal read it and said “It looks like you have it all summed up.” (R. 260, Tr. 247, Appendix p. 1221). Neal again betrayed Garrison. In Garrison’s written presentation to the Committee at Dana Point, there is no mention of any 30- day rule. (R. 281, Tr. p. 495, Appendix p. 1360) There is no dispute that Garrison was completely unprepared to rebut the 30-day rule at the Dana Point hearing. (R. 236, Defendant’s Exhibit Y, Appendix p. 843). There is no dispute that this was a result of Neal’s decision to violate Garrison’s “Bill of Rights.” | | 3 Illa Breach of DFR No. 9. On the Sunday before the Dana Point hearing, Joe Clark, on behalf of Cassens, gave Neal seven Committee decisions. Clark did not tell Garrison what the decisions stood for, nor did he mention the 30-day rule. Neal handed the Committee decisions to Garrison and said “What do you think?” Garrison tried to read and understand the Committee decisions given to Neal by Clark. To Garrison, none of the decisions said anything about his issues in the grievance. The seven decisions said nothing about why Garrison’s name was not on a seniority list, or the technical requirements of a medical release. The decisions were silent about any rule that caused the loss of terminal seniority after the dovetailing of a seniority list. Garrison did not know what the cases meant. (r. 260, Tr. p. 248, 249, Appendix p. 1222, 1223). Garrison didn’t understand how the Committee decisions were relevant to Cassens’ argument that he had never made the election to follow the work and that he didn’t have a medical release. Neal never told Garrison that these prior Committee decisions were intended to advance a new and false 30-day rule terminating his seniority. Neal decided once again not to tell Garrison that Clark had advanced these Committee decisions and a 30-day rule 4 months earlier at the New Orleans hearing. (Garrison Brief, p. 14; R. 280, Tr. p. 248-249; Appendix 1222 and 1223). Neal probably hoped his decision not to tell Garrison about Cassens’ 30-day rule would cause Garrison to lose his grievance hearing. The poisonous tree bore fruit. Garrison lost the grievance (due to Neal’s unfair representation) and the Committee decision placed no blame on the Union or Cassens. (R. 264, Appendix p. 215) 112a Breach of DFR No. 10. It is undisputed that Neal knew that Garrison was the only driver in the entire history of the car haul industry who ever faced the loss of his terminal seniority because of Cassens’ invented 30-day rule. Neal knew NMATA prohibited Cassens’ application of its fake 30-day rule. Neal knew there had never been a notice posted of Cassens’ 30-day rule as required by the NMATA. (See citations in Garrison Brief, p. 5). Neal admitted at trial that he knew of no Committee decision that had ever applied the 30-day rule to eliminate terminal seniority rights. Clark admitted that there were other drivers who were not able to work within 30 days but did not have their names taken off the seniority list. (R. 260, Tr. pp. 520-521). This supports the inference by the jury that Clark, on behalf of Cassens, was lying and Neal knew it. Garrison proved that Cassens’ 30-day rule was a fake. The Panel incorrectly states: “.... The thirty-day rule was rarely invoked and even more rarely relied on as a basis to defeat a grievance.” (Panel Decision p.17). This error by the Panel is of paramount importance. As the Panel recognizes, Clark submitted seven prior Committee decisions deeding with the contractual 30-day rule at the Dana Point Hearing. Obviously, the 30-day rule as described in the contract is not obscure. The Panel’s decision indicates that the Panel understood that Cassens, through Clark, was advocating a false 30-day rule: “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 the cases involved in-company transfers to either new terminals, new jobs, or other terminals with new work opportunities.” (Panel Decision, p. 10). | 113a It is only reasonable to infer that Neal knew this also. At trial, Garrison proved that the fake 30-day rule was never, in the entire history of the car haul industry, used by any employer to destroy terminal seniority rights. (R. 240, Appendix pp. 122, 123). Cassens’ 30-day rule was a lie, it was not an “obscure rule.” The Panel’s misunderstanding led it to believe that Neal’s failure to tell Garrison about Cassens’ planned application of the 30-day rule was negligence. However, it is likely that Neal was advancing Cassens’ agenda by allowing a fake 30-day rule as an explanation for Garrison’s loss of seniority. The jury should have found Neal guilty of intentional misconduct based upon these facts. Breach of DFR No. 11. The transcript from the grievance hearing in Dana Point, California was introduced irto evidence at trial. It was very revealing. The transcript proves that Neal left Garrison entirely on his own to present his grievance. Most importantly, Neal left Garrison entirely on his own to argue against the applicability of Cassens’ 30-day rule. Neal knew many of the Seniority Committee members at this hearing. It is undisputed that Neal would have had much more credibility with them than Garrison, whom the Seniority Committee had never seen before. Neal was mute on the 30-day rule. Neal did not even agree with Garrison when Garrison said he didn’t think the Committee decisions seemed to apply to his situation. This spoke volumes to the Committee members. The jury should certainly have considered that Neal’s muteness substantially affected the outcome of the hearing. Breach of DFR No. 12. During the Dana Point hearing, Clark, on behalf of Cassens, repeatedly blamed Local 327 for failing to get Garrison’s 114a name on the list in January, 1995, when Neal testified the list was complete. Neal knew Clark was right. The Union was to blame but Neal would not admit it. Neal had a motive to remain silent on the 30-day rule. The invention of a 30 day rule destroying Garrison’s terminal seniority allowed the Union to escape liability because Garrison was, in fact, physically unable in 1994 to present himself to work within 30 days. Cassens’ 30-day rule exonerated both Cassens and Neal and placed all the blame on Garrison. The decision by the Seniority Committee meant that the Union had no liability for dropping the ball - failing to get Garrison’s name on the seniority roster. (R. 264, Appendix p. 214-215). Neal stood silently by while the lamb he should have protected was led to the slaughter. Breach of DFR No. 13. Neal was knowledgeable with respect to the seniority rights and the collective bargaining agreement. He was one of the negotiators of the Central and Southern Area Supplemental Agreement to the NMATA. (Plaintiff's Exhibit 1, p. 293). Neai had access to prior Committee decisions. (R. 281 and 282, Tr. p. 492 and 616, Appendix p. 1357 and 1425). Neal knew the prior decisions of the Seniority Committee which were submitted by Clark were not relevant to Garrison’s case. Neal never even attempted to obtain Committee decisions relevant to the issue in Garrison’s grievance. The Avon Lake decision would have disposed of Garrison’s case. In that decision, the Seniority Committee concluded that a driver off on workers’ compensation status who elected to transfer to Cassens was deemed transferred and would hold his seniority at Avon Lake uatil released from compensation status. In other words, there is no 30-day rule. Cassens was a party to the Avon Lake decision, as were Ian Hunter, Ron Borges, and William Hadley. These persons were on the Seniority , Ce ee 115a Committee in Garrison’s case and were on the Avon Lake Committee when the Avon Lake decision was made. (See citations in Garrison’s Brief, p. 20). The Panel concedes that the Avon Lake case was dispositive. Had the Seniority Committee in Dana Point been reminded of the Avon Lake decision, the outcome should have been different. (Panel Decision, p. 10) Neal could easily have made a colorable argument that the Committee decisions relied on by Cassens were not applicable to Garrison’s case. Neal could have found the Avon Lake decision, but Neal said nothing and did nothing. (R. 264, Appendix p. 215-216). Neal caved in and did not stand up for Garrison. Garrison argued to the jury, the trial court and this tribunal in his brief that Neal’s silence at the hearing was most likely motivated by an illegitimate purpose. (Garrison Brief, pp. 37-38). Breach of DFR No. 14. As this Court recognizes, the NJSSC Committee did not distinguish relevant prior decisions from irrelevant ones. (Panel Decision p. 10). Garrison did not have a fair hearing and the process was fundamentally flawed. The grievance hearing at Dana Point was conducted without the benefit of a prepared grievant. Cassens was well prepared. Garrison thought he was too, but thanks to Neal. he wasn’t. Had Garrison or Neal been prepared to rebut the 30-day rule, the evidence suggests (and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0760%3A1. Public record. Not legal advice.