Petition for Writ of Certiorari — Cummins v. Pepsi-Cola Co.
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' 99 313 Ju 29 9
No.
In The
SUPREME COURT OF THE UNITED STATES
BRET CUMMINS
Petitioner,
v.
PEPSI-COLA COMPANY
LOCAL NO. 12593 UNITED
STEELWORKERS OF AMERICA;
UNITED STEEL WORKERS OF
AMERICA, AFL-CIO-CLC
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
Bret Cummins
P.O. Box 284
Jeff, Kentucky 41751
606/436-4014
(i)
QUESTIONS PRESENTED FOR REVIEW
1. Where given the provisions of the Collective
Bargaining Agreement and the interpretive actions of
Pepsi and the Union, Cummins could present evidence
that Pepsi and the Union discriminated against him by
violating national labor laws by forming a Company-
Dominated Union, and by blocking his recall from lay-
off, when full time work was available, and intentional
misinterpretation of the contract, whether the Court
below erred in granting defendants summary judgment?
2. Where Cummins could present evidence that
Pepsi breached the contract by violating his rights
under the employment discrimination statue 42 USCS
Section 2000e by blocking his recall and refusing to
work him but working non-union men in his place full
time in violation of the contract, which was ignored by
the lower courts, whether the court below erred in
granting defendants summary judgment?
3. Where Cummins could present evidence that the
Union refused to pursue his grievances after joining
Pepsi in a construction of the contract, contrary to its
provisions and to the parties’ interpretive conduct,
joined Pepsi to contend that the contract had not been
breached and by allowing Pepsi to discriminate against
him by blocking his recall rights, whether the court
below erred in granting defendants summary judgment?
4. Isaclaim to time bar Cummins’ November and
December, 1995 grievances fair, since Pepsi nor the
Union had given a verbal or written statement until in
June, 1996, that they considered them resolved, after
which Cummins filed a timely complaint with NLRB?
Ee
(ii)
STATEMENT REQUIRED BY RULE 29.6
Plaintiff, Bret Cummins, has no parent Company
and no nonwholly owned subsidiaries.
> an) r
QUESTIONS PRESENTED FOR REWIEW............
STATEMENT REQUIRED BY RULE 29.6............ ii
TABLE OF AUTHORITIES. ......ccccccssscseseesssoessseesees V
8: , TE Sa a I
PUP BN cevsverencsecnses TAS PROVED I oO LT Sy 2
STATUTORY PROVISIONS INVOLVED......... ,
RPE ESIEEINE OF TEI CASE... .ccccecccrccssceccvecceseeees 3
The Reorganization and Cummins’ Layoff
G.I ee eee 4
Controversy Over Consolidation............0000...c0000- 7
Cummins’ November and December
SS EE eee eee 7
Thompson’s Contradictive Statements................. 9
June 12, 1996 Grievance Meeting.................000.. 1]
The Transfer of Arnett and Damrell
Due to Arnett’s Deficiencies................cccccccceeecee 12
Pepsi Offers Cummins Job But
Union Gives It To Damrrell.................cccccccceecceeee 15
(iv)
SUMMARY OF ARGUMENT..............eeecceeeeeeeeeees 20
REASONS FOR GRANTING THE WRIT............. 27
aan 29
APPENDIX
United States Court of Appeals
- Pe Ce Fe eiicceseciccennssiincossonsninevensenvenies la
United States Court of Appeals
For the Sixth Circuit
Coniston Agel 3G, 1999...ccceccesossovcccscesonsvencnesenees 2a
United States District Court for
the Eastern District of Kentucky...................0066 Sa
United States District Court for
the Eastern District of Kentucky
Memorandum Opinion and Ordet.................0008 6a
United States District Court for
the Eastern District of Kentucky
PE csiicsierviitinccincaveninnniintinnnmaiiiibiga 18a
CASES Page No.
Air Lines Pilots v. O'Neill, 499 U.S. 65 (1991).......27
Bache v. AT&T, 840 F.2d 283, 291 (Sth Cir.),
cert. denied, 488U.S. 888 (1988)..........:cccccceeseeeeeees 22
Bagsby v. Lewis Bros.,, Inc. of Tennessee,
SZO F.26 799 (GB Cir, 1967)... .ccccsoceccrccccsccassocsceeees 23
Bennett v. Local Union No. 66, Glass Workers
Int’l Union 958 F.3d 1429 (7th Cir. 1992)........00..... 29
Bond v. Local Union 823, International
Brotherhood of teamsters, 521 F.2d 5
ke, REISE Sc ARR SEIT Ae 22
Cappa v. Wiseman, 469 F. Supp. 437 (N.D.
Cal. 1979), aff'd, 659 F.2d 957 (9th Cir. 1981).......22
Chauffeurs, Teamsters & Helpers, Local No. 391
F, FER, GOO, FOGe Wai ewccsencsenisennessesensnvscren 21
Cronin v. Sears Roebuck & Co., 588 F.2d 616
{Le Ae, ) eemecnnen PRE eRe nd LA Dp oe SERA 22
Hines v. Anchor Motor Freight, 424 U.S. 554
CPP Fe isulicaicciscsnbibiekidadiniesuntedibimdadcaiamasidpiddiaadanasue naital 28
(vi)
International Union, United Auto, Aerospace
and Agr. Implement Workers of America (UAM)
v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983),
cert. denied, 465 U.S. 1007 (1984)... eee 21
Linton v. United Parcel Service, 15 F.3d 1365
CT, Fe iiccccnsscercisdenstanitgebenicuiahaennrenmianeen 21,27
Manzer v. Shamrock Chemical Co.,
BP E38 BOTE IC, TI ecceeeescseriinnemonnin 25
Randell v. Lodge No. 1076,
Le 2 Be, Le | Seeeenmmnnrene 21
Thurman vy. Yellow Freight Systems, Inc.
90 F.3d 1160 (6th Cir. 1996)...............ccccccsesssses 25,28
Vaca v. Sipes, 386 U.S. 171 (1967)..............ccccceees 27
Vadakin, Inc. v. International Brotherhood
of Boilermakers, 748 F. Supp. 550
CB Se Fa iv enctackacsndsdiacneoninaialsouaseiaies 22
In The
SUPREME COURT OF THE UNITED STATES
No.
BRET CUMMINS
Petitioner,
Vv
PEPSI-COLA COMPANY
LOCAL NO. 12593 UNITED STEEL WORKERS
OF AMERICA; UNITED STEELWORKERS OF
AMERICA, AFL-CIO-CLC
Respondents.
On petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
On February 18, 1998, the United States District
Court Eastern District of Kentucky, Pikeville, made a
decision in this case and is included in the appendix at
pages Sa - 18a.
On April 30, 1999, the United States Court of
Appeals for the Sixth Circuit made a decision in this
case and is included in the appendix at pages la - 4a.
y
JURISDICTION
The United States Court of Appeals for the Sixth
Circuit made a decision in this case on April 30, 1999.
A petition for rehearing was not timely filed in my
case. The jurisdiction of this Court is invoked under
28 U.S.C. 1254 (1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The District Court and the Court of Appeals failed
to recognize that Cummins had been a victim of
employment discrimination as in statute 42 USCS
Section 2000e which prohibits discriminatory
practices and it is applicable to whites upon the same
standards as nonwhites. The lower courts disregarded
and made no comment on Cummins’ issues of
discrimination as sited by:
Vaca v. Sipes 386 U.S. 171, 177 (1967)
O'Neill, 499 U.S. at 67 ; 386 U.S. at 190
Linton v. United Parcel Service, 15¥ .3d
1365, 1369 (6th Cir. 1994)
The Union must treat all their members in good
faith, honesty and equally, Vaca v. Sipes, supra and
can not favor one employee over another. Cruz v.
Local Union No. 3, 34F.3d 1148 (2nd Cir. 1994)
3
STATEMENT OF THE CASE
The District Court, Judge Joseph Hood, Pikeville,
Kentucky, made his decision in this case to give defendants,
Pepsi-Cola and United Steelworkers of America, Summary
Judgment based on false facts presented by Pepsi and the
Union, misinterpretation of the CBA by Pepsi and later
followed by the Union, which were contrary to the record and
the CBA and vicious acts of blazon discrimination, prejudice
and malice by blocking Cummins’ recall rights by working
non-union employees instead of recalling him when full time
work was available. The Court of Appeals agreed with Hood.
The record showed that evidence was presented to the
lower courts that established that Cummins was discriminated
against by Pepsi and the Union later joined them in an effort
to prevent Cummins from being recalled back to work. The
local Union in their Summary Judgment, that the District
Court reviewed, stated that Mike Harris, Hazard plant
manager, had stated that Cummins would have to drive to
Pikeville and take the job that Pepsi was offering or “quit”.
The lower courts ignored the facts that Cummins was the only
employee affected by the proposed consolidation that was
mandated to do this, everyone else was provided
transportation to ease expenses. They also state in their
Summary Judgment that at the June 12, 1996 grievance
meeting that Mike Harris had thrown Cummins’ grievance in
the trash and stated that “Pepsi didn’t have any obligation to
him”, but that Thompson had reminded Harris that Pepsi was
obligated to Cummins because he had recall rights. Also, in
his testimony, Union Steward Bryan Grubb supports the fact
that Cummins was discriminated against by Pepsi in stating
that Harris had told him when he asked about whether Pepsi
was going to recall Cummins back to work full time ,after the
4
June 12, 1996 meeting was over, and Harris replied, “I am not
going to hire Bret Cummins”. These statements have not
been disputed, but rather elaborated and flaunted in front of
the lower courts. The lower courts failed to recognize that
Cummins had been treated unfairly because Pepsi had been in
violation of national labor laws by restraining Cummins from
recall by misinterpretation of the CBA, and by forming a
Company-Dominated Union and the Union failed to fairly
represent Cummins by joining with Pepsi and helping to
restrain Cummins from recall by evading their duty by
allowing Pepsi to discriminate against him.
The B siti cad Comisiait tall tn Coeuesbns Str
Bret Cummins worked at defendant Pepsi-Cola Company
in Hazard, Kentucky. In late November Pepsi wanted to
consolidate the three existing vending departments in Hazard,
Paintsville and Pikeville and consolidate the three separate
seniority lists into one consolidated list. Thompson had not
discussed the pending consolidation with Pepsi nor its effect
on workers including Cummins. (Thompson Dep., p. 22,
Apx. _). Instead of talking with the Union about their
proposed plan, as stipulated in the Collective Bargaining
Agreement, (CBA), Pepsi mandated that all employees start
the consolidation process by bidding on jobs under a
consolidated seniority list from all three departments at the
objection of the workers and numerous filed grievances.
According to the CBA, Article XXV, Complete Contract,
states:
The provisions of this agreement can be amended,
supplemented, rescinded or otherwise altered only by
mutual agreement in writing signed by the parties
hereto.
‘eee ce
5
Cummins, along with two co-workers in the vending
department at Hazard filed a grievance stating that the forced
consolidation was a violation of the CBA since the CBA
clearly states Separate Seniority Lists for each location and
the existing CBA under which they vere working did not
expire until in February, 1996. Article IV, Section 4
stipulates Separate Seniority Lists. The Court of Appeals
upheld Pepsi’s explanation that they chose to keep the
Separate Seniority List provision in the new CBA because if
they wanted to have separate lists in the future they could.
This is contrary to the language of the CBA. A provision
should not remain in a contract that is presumed void and
without meaning. If Pepsi is allowed to maintain a provision
in their CBA that is void and without meaning, they could
change or manipulate this provision whenever an unfair labor
claim or grievance came up in order to protect themselves.
This would be unprofessional and unethical to their workers
besides, against the law.
The District Court stated that Union Representative
Ernest Thompson, at the December 5, 1995 grievance
meeting for Cummins argued that Pepsi had violated the
CBA, but Pepsi alleged that the Union’s interpretation of the
contract was wrong but agreed to deal with the issues of
Cummins’ seniority rights and his unequal treatment during
the pending consolidation, in negotiations of the new CBA.
(Memorandum Opinion and Order, p. 2, Apx.__). By now,
Cummins was asked to give up his job as a Service Tech
and give it to a senior employee who had more seniority but
lacked technical training in refrigeration and also lacked the
EPA certification to work on refrigeration equipment legally.
Cummins didn’t file a grievance but told Pepsi and the Union
that according to the CBA Article IV, Section 1:
6
It is agreed that the Company recognizes the seniority
rights of all members of the Union employed by the
Company. All layoff, recalls, transfers, promotions
and overtime selection shall be based on qualifications.
Among qualified employees, seniority shall apply. ..
Pepsi wavered the federal law restriction and gave the job to
Manuel Arnett assuming that he could become certified latter
and disregarding his inability to perform the complete job due
to deficiencies in training. (Memorandum Opinion and Order,
P. 4, Apx.__). However, the Union and Pepsi made a verbal
agreement with Cummins that if Arnett was incapable of
doing the refrigeration part of the job, they would put him
back to his job as Service Tech. By now the proposed,
unorganized consolidation had displaced Cummins from his
job and now Pepsi mandated that he transfer to Pikeville
and lose seniority rights and status and drive his own vehicle
at his own expense or “quit”. (Motion for Summary
Judgment, Pepsi, p. 6, Apx.__). Everyone else affected by
the consolidation was provided transportation to help ease the
expenses of commute and none were treated unequal like
Cummins and given this ultimatum. At this time Cummins
told Harris that he could not afford the expenses of driving his
own vehicle and he asked Harris if he could have one of the
Associates’ jobs since at the time of Cummins’ layoff, Pepsi
had two Associate employees working. According to the
CBA, Harris should have given Cummins one of these jobs
but Harris refused and told Cummins there were no openings.
(Harris Dep., p. 13, Apx. _). Because of these unfair
circumstances surrounding Cummins’ job displacement,
Thompson negotiated him a conditional, temporary lay-off
until his issues of seniority rights and unequal treatment could
be resolved through negotiations.
4
; —_—
Thompson had not discussed the pending consolidation
with Pepsi at the time of the December 5, 1996 grievance
meeting for Cummins nor how it was displacing Cummins by
acts of discrimination. (Thompson Dep., p. 22, Apx._ ).
Thompson testified that he had not seen any documents to
verify that Pepsi had actually consolidated. (Thompson Dep.
21, Apx.__). He also gave contradicting statements in his
deposition that he did not know for a fact that the seniority
lists had been consolidated into one seniority list. ( Thompson
Dep., p. 55, Apx.__). This is contrary to their entire case and
supports Cummins’ allegations that the seniority lists had not
been combined. Evidence was presented to the lower courts
that supported these facts. The District Court took Pepsi’s
word that they had consolidated. The Court of Appeals
stated that they made their determination because Cummins
had stated that Pepsi had consolidated. When asked by
opposing counsel if Pepsi had consolidated, Cummins said yes
based on the assumption of what he had been told by Pepsi
that the proposed consolidation had actually happened.
Cummins did not had any personal knowledge of whether
they consolidated.
ren eae iciiiilee Cie
Thompson failed to answer Cummins’ November
grievance but keep verbally promising that he was trying to
get things worked out so he could be called back to work. In
late December Cummins saw men from Pikeville doing part of
Arnett’s job, he filed another grievance stating that Pepsi was
bringing men into Hazard and doing work that he should have
been recalled to do. Another worker from Hazard that had
8
been effected by the proposed consolidation, Terry Isaac’s,
filed a grievance in support of Cummins’ and can be presented
as evidence. Pepsi failed to answer the grievance and the
Union, Thompson, said he would address it in during contract
negotiations. Pepsi and the Union rejected Cummins’
grievances and restrained him from recall by working men
from different locations, to do the work Arnett was incapable
of doing, before the seniority issues had been resolved and on
the pretense that the Union was trying to get Cummins back
to work. Pepsi also blocked Cummins’ recall to employment
by misinterpretation of the CBA. Pepsi and the Union bitterly
denied that Cummins had filed a grievance in December after
litigation started. (Thompson Dep., p. 27, Apx.__). However
in his response to the NLRB, Union Representative
Thompson elaborated on details of Cummins’ grievance and
stated to the NLRB that the use of employees from Pikeville
had only been on a temporary basis and therefore had not
violated the CBA. (Cummins Dep., Exhibit 8, Apx. _ ).
These statements presented in this letter by the NLRB,
Exhibit 8, were statements presented by Thompson under
affidavit that helped the NLRB determine whether Cummins
had been treated unfairly or discriminated against by Pepsi.
Now, after the fact, Thompson had joined with Pepsi in a
collusion, or cover up, and has retracted most of the
statements that he presented to the NLRB under affidavit as
facts and have changed them to denials. This supports the
fact that Pepsi treated Cummins unequal to other employees
before and after his lay-off, and the Union later joined Pepsi in
an attempt to prevent the lower courts from acknowledging
that Pepsi and the Union had violated the CBA by
misinterpretative actions that were considered discriminatory
in nature and prejudice and malicious by conduct in an
attempt to prevent his recall rights.
el
9
7 +s Contradictive S
Thompson could not have made a determination not to
pursue Cummins’ grievance #62 any further with good will
and honesty, as he alleges, of whether Cummins was being
discriminated against or whether his seniority rights had been
violated, if he did not know for a fact whether or not the
seniority lists had been consolidated or whether or not Pepsi
had actually consolidated. Thompson stated to the NLRB
that Pepsi had consolidated. After the fact, he stated in his
deposition that he did not know for a fact if they had actually
consolidated. These contradictive statements were pointed
out to the District Court, and to the Appeals Court, but were
ignored.
The District Court also overlooked the fact that the local
Union in their Motion for Summary Judgment state that
Thompson at the February 10, 1996 Union meeting told the
union members that Pepsi was going through with the
consolidation and that he had determined that the
consolidation would not erode the bargaining unit or
discriminate against any one person (Cummins).He also stated
that he was trying to get Cummins back to work. (Union
Motion for Summary Judgment, p. 8, Apx. _). The District
Court wanted to determine that Cummins November and
December grievances be time-barred because Pepsi and the
Union alleged that Cummins knew in February, 1996 that
Thompson was not going to pursue his grievances any
further. Facts were presented to the court that Thompson
had denied Cummins’ November and December grievances
but to the National Labor Relations Board (NLRB) he had
elaborated on how he had partially resolved them with the
“bridged” seniority clause in the new CBA. Based on
statements that were presented under affidavit, the NLRB
10
concluded that Thompson had answered Cummins November
and December grievances. The lower Court stated that Pepsi
and the Union had denied ever receiving the complaint,
therefore, ignoring its merits. (Memorandum and Opinion, p.
3, Apx. _). Thompson also stated to the NLRB that he had
notified Cummins on February 17, when the contract was
voted on, and again on June 12, 1996 that he had resolved
Cummins’ grievances with the “bridged” seniority. (Thompson
Dep., Exhibit 12, Apx. _). The District Court overlooked the
fact that Cummins did not attend the February 17 meeting and
the Union criticized him for it. (Motion for summary
judgment local union, p. 8,9, Apx. _). Cummins did not find
out about “bridged” seniority vetil June 12, 1996 when other
union members told him they had just gotten their seniority
back. Thompson stated to the INL.LB that the new CBA did
not go into effect until in April 1996. (Cummins Dep. for
union, Exhibit 8, Apx. _). The District Court overlooked
these false statements that were made by Union which were
proven to be untrue.
Cummins had filed a complaint with the NLRB in July
once he found out that Thompson and Pepsi were not going
to answer his grievances nor keep their promises to recall him
back to work even though they had discriminated against him
during the pending Consolidation and laid him off until issues
related to the consolidation could be worked out for him.
The Union stated in their Summary Judgment that all of
Cummins’ grievances and their duty toward Cummins during
the contract negotiations should be time-barred. (Motion for
summary judgment, local union p. 15, Apx.__). The NLRB
did not reach their decision until in October, 1996 and
Cummins could not file his lawsuit until they released his case.
He filed case November 1996.
a ee
1]
bene 12, 1996 Gas Meet
In May, 1995, Cummins filed another grievance since he
still had not been recalled back to work and he saw Larry
Damrell, from Pikeville, doing Arnett’s job in Hazard and
spoke with him. Also, Supervisors and Associates[non-union|
were doing work on a daily basis in Hazard. However, the
District Court decided that Pepsi, had not violated the CBA
by working supervisors and associate employees [non-union]
since Pepsi said it was on a sporadic basis. (Memorandum
Opinion and Order, p. 4, Apx.__). Evidence was presented to
the Court that Union Steward Bryan Grubb and other union
members at the June 12, 1996 meeting had established that
full time work was available since Pepsi had agreed to stop
working supervisors and Associate employees with Cummins
on lay-off which was a violation of the CBA. (Grubb Dep.., p.
38, Apx.__).
Article XVI, Section 11 states:
The Company may use associates in the off-season
due to unexpected absences. Associate employees
will not be used when any regular full time employees
are on lay-off.
Thompson stated that Pepsi should recall Cummins on a full
time basis since it was established that full time work was
available. In the Union’s Motion for Summary Judgment,
they state that Thompson demanded that Pepsi recall
Cummins on a full time basis but Pepsi refused and would not
commit to recalling Cummins on a full time basis but agreed
to recall him on a sporadic type basis. (Motion for Summary
Judgment, local Union, p. 11, Apx.__). Cummins and Grubb
testified that Thompson did not agree to sporadic type work
12
since full time work was established and he refused it, not
Cummins. The District Court ignored the facts presented by
Union Steward Grubb, that he said could be collaborated by
other union members at the meeting, that Pepsi was working
Supervisors and associate workers on a full time basis. The
District Court and the Court of Appeals overlooked the fact
that the Union supported Grubb’s and Cummins’ testimony.
Evidence could be presented that Pepsi has not ceased to this
day of working associates in union jobs as they were doing
when Cummins filed his grievance #62.
The District Court claims that Cummins backed off of this
issue that the CBA had been violated by Pepsi working
associate employees with Cummins on lay-off, which is not
the case. Cummins’ initial complaint stressed this fact. Also,
the Court of Appeals states that Cummins did not address the
issue of new hires, however overlooked the fact that the
record clearly stated that Supervisors and Associates were
regularly doing work that Cummins should have been recalled
to do, as Pepsi conceded and the court below correctly
remarked. There was substantial refrigeration work that
Arnett could not do plus additional work that was being done
by Supervisors and Associates.(Proof Brief for Appellant, p.
32, Apx.__).
D fj - -
The District Court also upheld the fact that the transfer
of Arnett and Damrell had not been a violation the CBA since
they were in the same department. He also upheld the fact
the Arnett needed EPA certification to perform his job but
overlooked the fact that EPA certification had been a job
13
criteria since 1992. He was also aware that Arnett had not
received any training in Pikeville toward his certification as
the Union had alleged in their response to the NLRB nor the
fact that Arnett had been removed from his job due to job
deficiencies. They also failed to recognize evidence presented
that Arnett had filed a grievance to the effect that he was not
receiving any training toward his certification and demanded
to be transferred back to Hazard. Cummins pointed out to the
Appeals Court that Arnett had been removed from his job
because of deficiencies and therefore a vacancy was created.
However Thompson alleged they were transferred so Arnett
could receive training. Since that was not the case and since
the union grieved on Arnett’s behalf, Thompson could not
reasonably rest on this as a basis for his decision not to pursue
Cummins’ grievance any further. Thompson’s decision on
these grounds goes well beyond the bounds of good faith and
reasonableness. The District Court completely overlooked
the fact of whether or not Pepsi, by giving Arnett the job over
Cummins, knowing that he lacked EPA certification and
refrigeration training skills, was in violation of the Clean Air
Act plus discriminating against Cummins by ignoring the
qualification provision of the CBA that stated qualifications
supersede seniority when transfers were involved. The
District Court also criticized Cummins for not providing
information as to whether or not Pepsi was in compliance
with EPA laws or whether or not additional training was
needed for their Service Techs. (Memorandum Opinion and
Order, p. 6, Apx.__). The District Court ignored the fact
that Pepsi was violating the federal Clean Air Act by allowing
Arnett to work, yet they held Cummins accountable for not
providing Pepsi with information they should have already
known and been using. The District Court had overlooked
the fact that Cummins did not refuse to provide this
information, Cummins did not have this information in his
14
possession but was trying to obtain it from the EPA.
Whenever Cummins called Thompson on June 28, 1996,
Thompson asked him if he had gotten the information and
Cummins said “no” but that he was expecting it any day.
Pepsi and the Union made false statements that Cummins
refused to give them this information under advise of counsel.
Cummins did not have counsel which can be proven by
correspondence with NLRB. Thompson told Cummins he was
not going to pursue his May grievance and Cummins asked
him for a written answer from him and Pepsi to his
grievances.
The Court of Appeals overlooked the fact that Arnett was
removed from his job and assigned in Pikeville in violation of
the Temporary Transfer provision unless he had been
permanently transferred, a jury could find that a vacancy was
created in Hazard. Since Cummins retained contractual rights
to recalled from layoff to that vacant position, the court
below erred in concluding that Pepsi had not breached the
CBA in failing to recall Cummins.
The District Court acknowledges the fact that Thompson
sent Cummins the letter in response to his grievance but on
the issue of whether additional training, besides the EPA card,
was needed to perform refrigeration work and that Thompson
had made a good faith determination not to take Cummins’
case to arbritation. (Memorandum Opinion and Order, p. 6,
Apx.__). The District Court neglected to recognize that this
letter was the only answer that Cummins had received to his
entire grievance. The Court took Pepsi’s word that they had
answered Cummins’ entire grievance when they had no
evidence from Pepsi to support this allegation, but had facts
to the contrary.
15
Pepsi Offers Cumming Joh But Unio Gives lt To Demet
Also, in June, 1997, Cummins received a letter from
Kevin McDonald, Pikeville Manager, and was offered a job as
a Service Tech. Cummins did accept the job. McDonald later
called him and told him he could not have the job. The union
intervened and caused Pepsi to rescind the offer and it was
awarded to another employee, Larry Damrell, who has less
seniority than Cummins. The Union alleged that Darmell was
an “active” employee and Cummins is “inactive”. The CBA
does not contain any language about “active” or “inactive”
employees involving recall rights or vacant positions. Pepsi
and the Union added this interpretation to the contract when
Cummins accepted the job. Not only was this discrimination.
this was done with prejudice and malice intentionally to
humiliate Cummins. Mike Harris, plant manager at Hazard,
testified that he and McDonald discussed the job before it was
offered to Cummins. (Harris Dep., p. 36,37, Apx.__). The
District Court took Pepsi’s word that the CBA language
indicated “active” or “inactive:” employee when counsel for
Cummins argued that such language didn’t exist in the CBA.
The District Court also overlooked the fact that Pepsi and
the Union had from July to November, 1996, to get their facts
together to try to cover up any violations that Cummins had
accused them of since the NLRB had informed Cummins to
write Pepsi and the Union and describe all of his concerns and
the ways in which Pepsi and the Union had not treated him
equal to the other employees. With this information in their
possession, they portrayed Cummins as a ruthless, ungrateful
employee who didn’t have any morals who wanted the top
position at Hazard but who had the least seniority. With this
16
information in hand, they formed a collusion and Thompson
has retracted and contradicted statements that he signed under
affidavit and under penalty of perjury to the NLRB and now,
after the fact, have come up with different statements than his
original in order to get the Court to dismiss this case and
have used the NLRB decision to support the fact that Pepsi
nor the Union breached the CBA in connection with
Cummins.
Pepsi failed to keep their verbal agreement with Cummins
that they would work out his issues of seniority and recall
rights and put him back to work as soon as the negotiations of
the new CBA were complete. They failed to work out a ride
for Cummins but alleged to the lower courts that he refused
to ride with a co-worker. Pepsi representatives testified and
evidence was presented that the ride would not work out
because of conflicting schedules.
Evidence was presented to the lower courts that Pepsi had
tried to consolidate before given approval by the Union, it
was a known fact that Pepsi had already violated the CBA by
working non-union and management employees and men from
other locations, with Cummins on lay-off and discriminating
against him by working these men and blocking his recall to
employment. The union failed to fairly represent Cummins by
joining Pepsi in misinterpreting the CBA and by their
discriminatory actions that restrained and prevented his recall
to employment, and thus displaced him.
17
Cummins proved to the District Court that Pepsi had
violated the CBA by discriminating against him by treating
him unequal to other employees affected by the
consolidation. Secondly, Pepsi had violated the CBA by not
discussing the proposed consolidation with the Union before
they mandated that Cummins lose seniority rank and drive to
Pikeville or “quit”. Evidence was submitted that supported
the fact that Thompson testified that he did not know
anything about the proposed consolidation until he was
informed by Cummins. It was further proven by the Union
that Thompson had not accepted the consolidation of Pepsi
until in February, 1996, when he told Union Members at the
meeting that he had determined that the consolidation would
not erode the bargaining unit and he was trying to get
Cummins back to work. Pepsi and the Union alleges that the
consolidation had already taken place when Cummins was laid
off, which was not true, and is support by this statement from
Thompson. Also the memo submitted by McDonald that
had the proposed consolidation plans had a date of December
15, 1995, which proves the consolidation was not worked out
at this time. Also, by this time, Cummins’ November and
December grievances were still unanswered and Cummins
was being blocked by Pepsi and the Union from recall by
misinterpretation of the CBA and denying him treatment
and representation equal to other employees.
Also Cummins proved to the District Court that associate
employees [non-union] , had been doing union jobs with
Cummins on lay-off. Pepsi admitted they had violated the
CBA by working these non-union employees on a full time
basis but only agreed to recall Cummins on a sporadic type
basis which showed prejudice and discrimination toward
Cummins. The District Court admitted that Pepsi had violated
18
the CBA by working supervisors and associate workers with
Cummins on lay-off , but failed to take any action on
Cummins’ behalf.
The District Court had overlooked the fact that new hires
had been made at the Hazard plant. During the month of
March 1997, Cummins was offered to bid on sporadic type
employment. Cummins didn’t apply for the job on advise of
counsel that litigation had already started and with sporadic
work he would lose all of his benefits and seniority, therefore
being unacceptable. Mike Harris, Hazara plant manager,
hired an employee on lay-off, with less seniority, on a full
time basis but had only offered the job to Cummins on a
sporadic type basis, giving Cummins the same treatment,
denial of full time work, as the June 12, 1996 meeting. This
clearly shows discrimination and it shows the fact that Pepsi
flatly refused to recali Cummins on a full time basis. Also, he
had hired two associate employees on a full time basis around
the June 12, 1996 meeting which Cummins had informed
Thompson, who told him to take it up with management.
Overall, the District Court has admitted in their
Memorandum and Opinion that Pepsi had violated the CBA
by working Supervisors and associate employees with
Cummins on lay-off, the Court admitted that it was all right
for Pepsi to determine qualifications of their employers, even
if it meant violating Federal laws, the Court has admitted that
Pepsi could allege that the Union had misinterpreted the
language of the CBA, and Pepsi hadn’t, so therefore, it was
acceptable. Also, the District Court reviewed the facts in
this case and accepted the fact that Cummins was constantly
denied recall, his seniority rights ignored, qualifications
ignored, even though they had reviewed evidence that
supported Cummins’ claim by a union steward and
3
|
7
19
collaborated by union members that Cummins’ recall and
seniority rights were violated.
Taking all of the evidence into consideration, the District
Court ignored the fact that Summary Judgment is granted
when “no genuine issue” can be contradicted at trial.
Evidence was presented that a reasonable jury could
have made a determination after examining all of the facts
presented by Pepsi and Cummins. The District Court erred in
granting Summary Judgment.
The Court of Appeals upheld the decisions of the District
Court based on the facts that the lower court had determined,
such as the fact that Pepsi had consolidated when evidence
was presented that they hadn’t. They also based their
decision on the lower courts conclusion that no new hires had
been made. Associate employees had been hired and Pepsi
had admitted that they had violated the CBA by working
associates and Supervisors [non-union] with Cummins on
lay-off. The Court of Appeals erred and failed to recognize
that fact that Cummins had been a victim of discrimination.
Accordingly, the judgment of the court below should be
reversed and this case remanded for trial.
20
ARGUMENT
Former counsel for Cummins, Robert Abell had used
these laws to support Cummins’ case:
Cummins’ action under section 301 of the
Labor-Management Relations Act (LMRA), 29
U.S.C. Section 185, requires both a finding of a
breach of a collective bargaining agreement by the
employer and a breach of the duty of fair
representation by the Union. Chauffeurs, Teamsters
& Helpers, Local No. 391 v. Terry, 494 U.S. 558
(1990); Linton v. United Parcel Service,15 F.3d
1365, 1369 (6th Cir. 1994).
The interpretation of a collective bargaining agreement is a
question of law which this court reviews de novo. Linton, 15
I'.3d at 1370. Basic principles of contractual interpretation
are applicable to collective bargaining agreement.
International Union, United Auto, Aerospace and Agr.
Implement workers of America (UAW) vy. Yard -Man, Inc. ,
716 F.2d 1476, 1479 (6th Cir. 1983), cert. denied, 465 U.S.
1007 (1984). While “the court should first look to the
explicit language of the collective bargaining agreement for
clear manifestation of intent, “Yard-Man, supra, “|t|he
intended meaning of even the most explicit language can, of
course, only be understood in the contest which gave rise to
its inclusion, *"'/d.; see Randall v. Lodge no. 1076, 648
F.2d 462 (7th Cir. 1981); Cronin v. Sears Roebuck & Co..
588 F.2d 616 (8th Cir. 1978); Cappa v. Wiseman, 469 F.
Supp. 437 (N.D. Cal. 1979), aff'd, 659 F.2d 957 (9th Cir.
1981); see also Bache v. AT & T, 840 F.2d 283, 291 (Sth
Cir.), cert. denied, 488 U.S. 888 (1988)(“the terms of a
21
collective bargaining agreement consist of not only its written
provisions but oral and written amendments, the conduct of
the parties, the industrial common law, and the results of the
interpretive of the integrated whole. “ Yard-Man, 716 F.2d at
1479. “As in all contracts, the collective bargaining
agreement is a question of law, the issue of whether an
employer has breached a collective bargaining agreement may
be committed to the jury. Vadakin, Inc. v. International
Brotherhood of Boilermakers, 748 F Supp. 550, 553, (S.D.
Ohio 1990).
The only construction of the CBA which gives meaning to
all the relevant provisions, is consistent with the parties’
conduct and interpretive actions at the time and best serves
the interests of federal labor law is that Cummins’ retained
contractual rights in his employment in Hazard, or what
Grubb, the union steward, called “territorial rights.” The
record indicates that a jury could find that a vacancy was
created triggering Cummins’ recall rights when Arnett was
disqualified from the refrigeration technician position in
Hazard.
Cummins was laid off from the Hazard plant and his notice
was signed by Harris, whose authority extended only to
employees of the Hazard plant .(Harris Dep., p. 8, Apx. _).
If Cummins was, by virtue of the “consolidation”, an
employee of a single Pikeville department, Harris would
have no authority to take any action regarding his
employment status. This court has observed that actions by
the parties demonstrating their interpretation of the CBA
prior to the onset of litigation should be credited. see Bagsby
v. Lewis Bros., Inc. of Tennessee, 820 F.2d 799, 802 (6th
Cir. 1987). That Harris did possess and exercise such
authority evidences Pepsi’s recognition that Cummins’ status
remained rooted in the Hazard plant.
Grubb’s representation of Cummins’ grievance in May
1996 is the union’s indication that it considered him to retain
contractual status and rights as a Hazard employee. That
Pepsi recognized the contractual imperative to respond to the
grievance and Thompson to pursue it is an indication from
both that Grubb acted on behalf of an employee with
employment status rooted in the Hazard plant. The actions
of both Pepsi and the union recognized that Cummins had
status as a Hazard employee. Bagsby, supra.
Pepsi's position that the Temporary Transfer provision of
the CBA did not apply to the Arnett-Damrell transfers cannot
be sustained. The basis for Arnett’s grievance was the change
in location of his workplace when the supposed “training”
was not forthcoming. That the Union pursued the grievance
and Pepsi acceded to it evidences their interpretation that the
provision imposes a one-week transfer of location restriction.
Bagsby, supra. Moreover, the parties conduct recognizing a
contractual rights distinction for Hazard employees and those
from the other location further undermines the court below’s
conclusion that only one vending department located in
Pikeville existed for contractual purposes after the
consolidation. A reasonable jury could certainly find that
Pepsi did not willingly place an unqualified employee back in
a position at which he had already failed and at which he
could not lawfully perform.
The conclusion of the court below that no vacancy was
created in Hazard by Arnett’s removal to Pikeville cannot be
sustained. First the conclusion rested on the finding that the
23
December 1995 “consolidation” terminated all contractual
status and rights that Cummins retained at the Hazard plant.
That finding is contrary to the contractual language and the
parties’ interpretive conduct. Second, the court below did
not consider the allegations of Pepsi and the Union that no
vacancy was created because Arnett was receiving “training”
in Pikeville. A reasonable jury could find that Arnett received
no “training” and that a vacancy was created in Hazard to
which Cummins should have been recalled from layoff. It is
undisputed that not only was Arnett not receiving training but
this is the reason he grieved his transfer to Pikeville. (Grubb
Dep. p. 30-31, Apx.__). A reasonable jury could find
Pepsi's and the union’s contention that no vacancy was
created to be false and pretextual. See Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.
1994)(a jury issue is created when an explanation for an
employment action is shown to have no basis in fact).
Also, a reasonable jury could find that Arnett was
disqualified from the position, because he lacked the required
EPA certification. McDonald’s July 18, 1996, memo
indicates that Arnett was not getting the job done even
with respect to matters not pertaining to certification.
(McDonald Dep. Exhibit 5. Apx. _). The record establishes
that management personnel and non-union employees
(associates) were doing work on a regular basis that Cummins
should have been recalled to do, as Pepsi conceded and the
court below correctly remarked. Therefore, since Arnett
couldn’t perform the job, a reasonable jury could find that a
vacancy was created in Hazard. Since Cummins retained
contractual rights to be recalled from layoff to that vacant
position, the court below erred in concluding that Pepsi did
not breach the CBA in failing to recall Cummins.
24
A union has a duty fiduciary in nature to represent its
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid discriminatory conduct. Cummins could present
evidence at trial that the union refused to pursue his
grievances after joining Pepsi in a construction of the CBA
contrary to its provisions and the parties’ interpretive
conduct, further joining Pepsi in a false factual assertion to
contend that the CBA was not breached, after accepting
Pepsi’s rejection of the grievances on grounds known to be
false, and affording Cummins representation unequal to that
afforded other employees. A jury could find that the union
breached its duty to Cummins.
A union’s duty to fairly represent its employee-members is
fiduciary in nature; “a union owes employees a duty to
represent them adequately as well as honestly and in good
faith.” Air Line Pilots v. O'Neill, 499 U.S. 65, 74-75 (1991).
The union’s duty “includes a statutory obligation to serve the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good
faith and honesty, and to avoid a discriminatory conduct.
“Vaca v. Sipes, 386 U.S. 171, 177 (1967)
A breach of a union’s statutory duty of fair representation
occurs where a union’s conduct toward a member is arbitrary,
discriminatory or in bad faith. O’Neill, 499 U.S. at 67; Vaca,
386 U. S. at 190; Linton v. United Parcel Service, 15 F.3d
1365, 1369 (6th Cir. 1994).
Thus, on one hand the Union acknowledges Cummins’
continuing contractual status as a Hazard employee and
Grubb represent his grievance while, on the other hand,
25
joining--when it becomes convenient to do after the onset of
litigation--Pepsi’s contentions that Cummins retained no such
status. Notably, Thompson did not advance this position in
any of the three statements to the NLRB and his after-the-fact
assertions later made cannot be used to justify his decision.
See Bagsby, 820 F.2d at 802; See also Thurman v Yellow
Freight Systems, Inc., 90 F.3d 1160, 1167(6th Cir.
1996)(remarking that a changing rationale for employment
decision can be evidence of pretext). The union’s duty to
represent Cummins cannot be discharged by joining the
after-the-fact CBA interpretation proffered by Pepsi. See
Linton, 15 F.3d at 1372. Nor can after-the-fact reliance on a
CBA construction inconsistent with the Union’s prior
interpretive conduct be considered other than arbitrary.
Poole, 706 F.2d at 183; Ruzicka II, 649 F.2d at 1211 n3
Second, Cummins can present evidence that Thompson’s
contention that no vacancy triggering Cummins recall was
created by Arnett’s removal to Pikeville because Arnett was
there receiving training was known by Thompson to be
untrue. A reason that is false cannot be relied upon to justify
Thompson’s decision; a reason known to be false is the
epitome of whim, caprice, arbitrariness and bad faith. As the
Supreme Court has observed, arbitrariness occurs when the
machinery of the representation process has not acted with
some minimal level of integrity. Hines v. Anchor Motor
Freight, 424 U.S. 554, 571 (1976). Surely this minimal level
is not attained when company and union knowingly coalesce
around a false reason to reject the merits of an employee’s
grievance. Third, Cummins can present evidence at trial
demonstrating that Pepsi’s assertion in its written rejection of
Cummins’ grievance that all of its refrigeration technicians,
including Arnett, were duly qualified and certified was know
to be false by Pepsi and by Thompson. Fourth, Cummins can
present evidence at trial that the union afforded him unequal
26
representation than he did other union members. “[A] failure
to accord a member the same treatment given to all other
members might very well constitute a breach of the union’s
duty of fair representation this creating a jury question on this
issue.” Linton, 15 F.3d at 1373, citing Bennett v. Local
Union No. 66, Glass Workers Int'l union, 958 F.2d 1429,
1436-39 (7th Cir. 1992): Bond v. Local Union
823.Jnternational Brotherhood of Teamsters, 52) ¥.2d 5,9
(8th Cir. 1975). Although Arnett was admittedly unqualified
for the job that he assembled from Cummins, proved
incapable of performing it adequately and was disqualified,
the union has elected to stand behind the utter falsehood that
Arnett was getting training during the transfer and was not
disqualified. A jury could find that this explanation for the
union’s inaction to evidence bad faith and that the unequal
treatment given Cummins is a breach of the union’s duty to
him. Linton, supra. The court below’s judgment should be
REVERSED and this case REMANDED for trial.
27
REASONS FOR GRANTING THE PETITION
The Supreme Court should grant certiorari in this
case because the United States Court of Appeals and
the United States District Court have both made a
decision on an important federal question in a way that
conflicts with relevant decisions of this Court. The
lower Courts erred in that they failed to recognize that
Pepsi was violating the federal Clean Air Act by
displacing Cummins from a job for which he was
qualified and certified and putting another employee in
that job which lacked EPA certification to work on
refrigeration equipment legally, and who lacked
refrigeration training, which made him more apt to
violate the admissions of freon into the atmosphere,
and who was by Pepsi’s own standards “unqualified”
for the job.
In the past the Supreme Court has recognized that
employment discrimination, statute 42 USCS Section
2000¢ prohibits discriminatory practices and it is
applicable to whites upon the same standards as
nonwhites. Evidence was presented to the lower
courts that Cummins was restrained from recall to
employment by Pepsi discriminating against him by
blocking his recall by working non-union workers and
supervisors, and employees from other locations
instead of him. Also, whenever a job was offered by
Pepsi, it was taken away by the union in favor of
another employee who had less seniority. Also, Pepsi
and the Union incorporated language into the CBA
which was untrue in order to block his recall. The
28
lower courts failed to recognize that Cummins had
been discriminated against by his employer violating
national labor laws that prohibited the formation of a
Company-Dominated Union. Evidence was presented
to the lower courts that Pepsi and the union had
formed a collusion, after the fact, and had intentionally
misinterpreted the language of the CBA in an effort to
block Cummins from recall to employment.
This issue should be addressed to help other young
people deal with job discrimination and the emotional
drawbacks of being rejected from a job because the
company does not like you or favors another
employee other than you, and their actions have
nothing to do with whether you are qualified for the
job.
99
CONCLUSION
Che petition for a writ of certiorari should be granted.
Respectfullly submitted,
Bul ae Csyi49 \4 7-4...
Bret Cummins
la
APPENDIX
No. 98-5395
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRET CUMMINS,
PLAINTIFF-APPELLANT,
V.
PEPSI-COLA COMPANY; LOCAL
UNION NO. 12593, UNITED STEELWORKERS
OF AMERICA; AND UNITED STEELWORKERS
OF AMERICA, ALF-CIO-CLC,
DEFENDANTS-APPELLEES
Appeal From The United States District Court
Eastern District of Kentucky
|Hon. Joseph M. Hood, U.S. District Judge]
SL EE ES ak kk kk ik Sk lh th Sh lh te Hh te ye ty ete,
BEFORE:
KEITH, MERRITT, and DAUGHTREY
Circuit Judges
2a
NOT RECOMMENDED FOR PUBLICATION
No. 98-5395
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRET CUMMINS,
Plaintiff- Appellant,
v.
PEPSI-COLA COMPANY; LOCAL UNION
NO. 12593, UNITED STEEL WORKERS OF
AMERICA; AND UNITED STEEL WORKERS
OF AMERICA, AFL-CIO-CLC,
Defendants-Appellees.
BEFORE; KEITH, MERRITT, AND DAUGHTREY,
Circuit Judges.
PER CURIAM. Ina claim brought pursuant to 301 of the
Labor Management Relations Act, 29 U.S.C. 185, Bret
Cummins, a laid-off employee of the Pepsi-Cola Company
contends that Pepsi violated the terms of a collective
bargaining agreement by failing to recall him to work when a
vending department service technician who replaced him was
temporarily transferred to another post. Furthermore,
Cummins argues that the United Steelworkers of America, the
union representing Pepsi service technicians at Kentucky
plants located in Hazard, Paintsville, and Pikeville,
3a
breached its duty of fair representation by accepting the
company’s explanation for its actions and by not pursuing
Cummins’ claims to arbitration. The district court granted
summary judgment to the defendant company and union,
finding that the collective bargaining agreement did not
require recall under the circumstances presented in this matter
and that the union properly discharged its representative
duties.
In contesting the propriety of the district court’s
conclusions, Cummins focuses upon his belief that his recall
was mandated by the retention in the collective bargaining
agreement of site-specific seniority lists for technician
positions. The record before this court, however, makes clear
that the vending departments at the eastern Kentucky facilities
were combined and the seniority lists consolidated. In fact,
even the plaintiff himself admitted the consolidation during
deposition testimony. Moreover, other evidence before the
district court explained that the language requiring separate
seniority listings was retained in a collective bargaining
agreement negotiated affer the departmental consolidation
only in case Pepsi decided later that it would be advantageous
to reestablish separate vending departments throughout the
district.
Having determined that consolidation of the various
vending departments had indeed occurred, the district court
properly concluded that the explicit language of the relevant
collective bargaining agreement permitted the company to
transfer a less senior employee into Cummins’s former job on
a “temporary” basis while a senior technician received
required training. As noted by the court, the recall provisions
of the agreement giving preference to laid-off workers were
applicable only if “new hires” were made in the department.
4a
Because no such new hires were implicated in the assignments
at issue in this mater, the plaintiff was not subject to recall.
In order to sustain a claim in a hybrid 301 action, the
plaintiff must show both that the company breached the
collective bargaining agreement and that the union failed
adequately to represent him. Because Cummins was unable
to show one of these requirements, much less both of them,
his claim failed as a matter of law. It follows that the district
court appropriately granted summary judgment to the
company and the union.
Having had the benefit of oral argument, and having
studied the record on appeal and the briefs of the parties, we
are not persuaded that the district court erred in dismissing
the complaint. Because the reasons why judgment should be
entered for defendants have been fully articulated by the
district court, the issuance of a detailed opinion by this court
would be duplicative and would serve no useful purpose.
Accordingly, we AFFIRM the judgment of the district court
upon the reasoning set out by that court in its Memorandum
Opinion and Order filed February 18, 1998.
Sa
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE
CIVIL ACTION NO. 96-382
BRET CUMMINS,
PLAINTIFF,
V.
PEPSI-COLA COMPANY, UNITED
STEEL WORKERS OF AMERICA, AND
UNITED STEELWORKERS OF AMERICA
UNION LOCAL NO. 12593,
DEFENDANT.
BEFORE: JOSEPH M. HOOD, JUDGE
6a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE
CIVIL ACTION NO. 96-382
BRET CUMMINS, PLAINTIFF,
Vv. MEMORANDUM OPINION AND ORDER
PEPSI-COLA COMPANY, UNITED STEEL WORKERS
OF AMERICA, AND UNITED STEELWORKERS OF
AMERICA UNION LOCAL NO. 12593,
DEFENDANT
*REREKEKHEEKEKEAEHKEHE KE
This plaintiff, Bret Cummins (“Cummins”), brings this
action pursuant to 29 U.S.C. 185, arguing that the
defendant, Pepsi-Cola Company (“Pepsi-Cola”), violated the
collective bargaining agreement, and the defendants, United
Steelworkers of America and United Steelworkers of America
Union Local 12593 (hereinafter collectively referred to as
“the Union”), breached their duties of fair representation.
The defendants have responded, denying the allegations and
moving the Court for summary judgment.
Being fully briefed, this matter is now ripe for decision.
Having reviewed the record and the parties’ memoranda, the
Court finds that the defendants are entitled to judgment as a
Ta
matter of law. Accordingly, having so found, the court makes
the following findings of fact and conclusions of law
consistent with such determination.
FACTUAL BACKGROUND
The plaintiff, Cummins, was employed by the defendant,
Pepsi-Cola, as a vending technician/refrigeration mechanic in
Pepsi-Cola’s Hazard, Kentucky facility. In November of
1995, Pepsi-Cola decided to consolidate its Hazard,
Paintsville and Pikeville, Kentucky vending departments,
locating the newly created vending department, now referred
to as the “Marketing, Equipment and Maintenance” (“MEM”)
department, to the Pikeville location.
This decision resulted in the merging of the seniority lists
of the three vending departments. The merger also resulted in
the displacement of certain jobs. In creating the MEM
department, Pepsi-Cola determined that the most senior
employees could bid on the positions within that department.
Unfortunately for Cummins, he was sixth in seniority and he
was unable to obtain the position of Refrigeration Technician,
which would have allowed him to stay in Hazard. Instead,
Cummins was placed in the Fountain Parts division, which
was based in Pikeville.
Unhappy with the consolidation decision, Cummins filed a
grievance, arguing that such consolidation violated his
“territorial” and “seniority” rights. As Cummins’
representative, the Union met with Pepsi-Cola on December
5, 1995. The Union representative, Earnest “Billy”
Thompson (Thompson) argued Cummins’ position that the
consolidation violated the terms of the CBA. Pepsi-Cola
disagreed with the Union’s interpretation of the contract. but
8a
agreed to deal with the situation at the negotiations for a new
CBA in early 1996. Dissatisfied with the outcome, Cummins
declined to take the Pikeville position and was laid-off.
During his lay-off, Cummins remained in touch with both
Pepsi-Cola and the Union. In fact, he eventually filed another
grievance when he learned that an employee, Manual Arnett
(“Arnett”) who was working at the Hazard facility in
Cummins’ old position, had been transferred to the Pikeville
facility, and another employee, Larry Damrell (“Damrell”),
with less seniority than Cummins, had taken over Arnett’s
position in Hazard. Cummins also noticed that management
employees were performing work at special events which
bargaining unit employees, such as himself, were to perform.
Based on this realization, Cummins filed another grievance,
arguing that Pepsi-Cola was again violating the CBA by
allowing management to perform such work. »
Pepsi-Cola and the Union met in regards to these
grievances on June 12, 1996. Besides discussing these
grievances, Cummins also complained that Arnett was not
qualified to perform refrigeration work because he was not
certified by the EPA. However, such complaint was not part
of either of his grievances.
| There is much dispute over whether Cummins was advised by
Thompson to take the lay-off or to remain employed. However, such
advice is not material to the resolution of this case.
Notably, Cummins allegedly also filed a grievance in December
of 1995, alleging that Pepsi-Cola “was bringing in daily personnel from
Pikeville to do work Cummins was qualified to do at defendant
company’s Hazard plant.” Plaintiff's amended Complaint at 18.
However, both the Union and Pepsi-Cola deny ever receiving this
complaint.
9a
The meeting did not result in Cummins’ grievances being
rectified. Instead, Pepsi-Cola maintained that the transfer of
Arnett and Damrell was appropriate and did not create any
recall rights in Cummins. Moreover, Pepsi-Cola maintained
that it had the right to use management employees when a
bargaining unit employee could not perform the work.
Pepsi-Cola did, however, agree that bargaining unit
employees were to perform such work and offered Cummins
the opportunity to perform such work on an “as needed”
basis. Cummins declined.
At the meeting, Pepsi-Cola also stressed that Arnett was
qualified for his position, but agreed that Arnett did need to
be EPA certified to perform refrigeration work. Pepsi-Cola
then noted that Arnett was getting certified. Because
Cummins argued that Arnett needed additional training, as
well as his EPA certification Pepsi-Cola agreed to look into
whether more than just an EPA certification was required.
Upon adjournment of the meeting, Thompson asked
Cummins for any documentation Cummins had in regards to
further training being required, as well as EPA certification, in
order to perform refrigeration work. Cummins, however,
failed to provide such information. Moreover, Pepsi-Cola
researched the issue, and determined that no further training
was needed. Hence, Pepsi-Cola stated that it had adequately
addressed Cummins concerns, but that it was not violating the
CBA in any way.
Enclosing Pepsi-Cola’s determination on whether
additional training was required to perform refrigeration
work, Thompson sent a letter to Cummins on July 26, 1996.
In that letter, Thompson relayed that the Union had “made a
good faith determination” to not take Cummins’ grievances
10a
to arbitration.
Upset that the Union would not take his grievances to
arbitration and still believing that Pepsi-Cola had violated the
CBA, Cummins filed this suit. He maintains that Pepsi-Cola
breached the CBA by (1) “its actions causing separation of
Cummins from his employment at the Hazard plant,” (2)
“having employees with less seniority come from other plants
to do work at Hazard Cummins was qualified to do,” and (3)
“transferring to its Hazard facility an employee with less
seniority than Cummins to do work at the Hazard facility
which Cummins was and is qualified to do.” Plaintiff's
Amended Complaint at 29. He also maintains that the Union
violated its duty of fair representation by acting arbitrarily and
refusing and failing to prosecute his grievance further. Id. at
30.
Pepsi-Cola and the Union now move the Court for
summary judgment. The defendants argue that Cummins
initial grievances are time-barred by the six-month statute of
limitations for hybrid section 301 cases. They also argue that
Cummins has failed to show that the Union breached its duty
to fairly represent Cummins. Lastly, Pepsi-Cola maintains
that Cummins has failed to show that it breached the CBA.
Cummins has responded, arguing that genuine issues of
material fact remain which preclude summary judgment.
Cummins first argues that Pepsi-Cola breached the terms of
the CBA by allowing Arnett and Damrell to be transferred
into a position for more than one week. Cummins then
contends that Arnett was not truly qualified, that EPA
certification had been required before the merger occurred,
and that Arnett did not receive any training when he was
lla
transferred to Pikeville. Cummins further submits that
because Arnett did not receive training, a vacancy was
created when Arnett was transferred and he, Cummins, should
have been placed in the position, not Damrell. Cummins
additionally highlights that the Union should have known this
and should have questioned Pepsi-Cola’s facts and
construction of the CBA. Thus, Cummins maintains that such
issues of knowledge are for the fact-finder to decide and
summary judgment cannot be granted.
The defendants reply, arguing that the factual issues that
Cummins brings forth are not material. j Even assuming such
facts are true, which they deny, the Union fairly represented
Cummins. Moreover, Pepsi-Cola maintains that even if
Arnett’s transfer created a vacancy or Arnett was not
qualified, Pepsi-Cola was not required to fill the position with
Cummins; they could place an active employee in such
position without violating the terms of the CBA.
CONCLUSIONS OF LAW
|. Cummins November and December of 1995
Grievances are Time-Barred
Under a hybrid section 301 claim, alleging breach of CBA
and failure to fairly represent, a plaintiff must file an action
within six-months of the time that the plaintiff is aware that
the grievance will not be relieved. Nida v. Plant Protection
Ass’n Nat’l, 7F.3d 522, 525 (6th Cir. 1993); see also
International Ass’n of Machinists & Aerospace Workers
v. Tennessee Valley Authority, 108 F.3d 658, 663 (6th Cir.
1997); Allgood y. Elyria United Methodist Home, 904 F.2d
373, 376 (6th Cir. 1990). Thus, because his complaint was
not filed until November 14, 1996, his November and
l2a
December : of 1995 grievances are time-barred. Interestingly,
Cummins seems to concede this point as his response to the
defendants’ motions for summary judgment focuses solely on
his May of 1996 complaint, in which he alleged that
Pepsi-Cola (1) had placed a person with less experience in his
position instead of recalling him and (2) was allowing
management to work special events instead of him. «
Il. CBA Was Not Breached and the Union Did Not
Breach Its Duty Of Fair Representation
In order to sustain a claim under section 301, Cummins
has to show both that Pepsi-Cola breached the CBA and that
the Union failed to adequately represent him. Black v.
Ryder/P.LE. Nationwide, Inc., 15 F.3d 573, 576 n.1 & 583
(6th Cir. 1994). Cummins is unable to set forth a viable claim
against Pepsi-Cola, much less against the Union.
Accordingly, Cummins’ hybrid section 301 claim fails. See
Ryan v. General Motors Corp., 929 F.2d 1195, 1109 (6th
Cir. 1989).
: Again it is unclear whether Cummins actually filed a
grievance in December of 1995. Regardless, assuming he did, it would
be timed-barred.
4 Cummins has also backed off on the second part of his
May of 1996 grievance. Cummins fails to take issue with Pepsi-Cola’s
decision as to management working special events. Instead, he focuses
his response on his claim “that his right to be recalled to
employment from lay-off was violated when the position,
which he had held previously and for which he remained
qualified, became vacant and Pepsi, instead of recalling [him],
placed in the position an employee with less seniority.”
Plaintiffs Memorandum Contra Defendants’ Motions For
Summary Judgment at p. 1.
l3a
A. Pepsi-Cola Did Not Breach The CBA
Under the CBA, Pepsi-Cola’s duty to recall Cummins only
occurred when a position became open and Pepsi-Cola was
looking to new hires to fill such position. The terms of the
CBA are very explicit. Section 2 of Article IV of the CBA
states:
It is agreed that an employee who is laid off shall he
held on the Employer’s waiting list for a period of one
(1) year or a period equal to his length of service,
whichever is less, and shall, while on the Employer's
waiting list, be recalled before any new hires are made
in his department.
Under that section, the, it is clear that an employee’s only
reassurance is that he will be recalled before a new hire: the
employee, however, is not assured that he will be recalled
before another active employee is placed in a vacant position.
Thus, even assuming Cummins’ assertion that the Hazard
refrigeration technician job became vacant because Arnett
was not receiving the training he was supposed to be
receiving, the CBA gave him no right to attain that spot over
Damrell.
Moreover, whether Arnett was qualified for the position
and whether transferring Arnett violated the one-week
transfer provision is not material as to whether Cummins was
entitled to such position. although it appears that Pepsi-Cola
had the right to determine the qualifications of its employees
and that the one-week transfer provision only dealt with
salary, even assuming that Arnett was not qualified and that
the one- week provision had been violalted, Cummins had no
l4a
standing to assert Arnett”’s lack of qualification or a violation
of the transfer provision.
First, Cummins had failed to initiate an actual grievance on
either issue, see Wi v.G iv
Warchousemen & Helpers, 93 F.3d 251, 155 (6th Cir.
1996). Second, neither violation affected Cummins’
employment since neither violation affected when he had the
right to be recalled.
B. The Union Did Not Breach Its Duty Of Fair
Representation
Assuming arguendo, however, that Pepsi-Cola did breach
the CBA, Cummins’ claim still fails; the Union has not
breached its duty of fair representation. The record is replete
with evidence of the Union’s attempt to negotiate Cummins’
grievances. The record clearly reflects that Thompson met
with Pepsi-Cola about Cummins’ May of 1996 complaint, and
that Thompson argued that Cummins should be recalled if
management employees were performing the work of
bargaining unit employees. In fact, Thompson obtained a
concession on such issue from Pepsi-Cola, as it agreed to
recall Cummins to perform such work. Notably, however,
because such special event work was sporadic in nature and
was not full-time, Cummins declined.
The record further reflects that Thompson discussed
Cummins’ concerns about Arnett being transferred and not
being certified. In fact, it is clear that Thompson, on
Cummins’ behalf encouraged Cummins to give him
information that Arnett needed more than just an EPA
lSa
certification to be qualified. Cummins, however, failed to
provide such information, and Pepsi-Cola submitted a letter
that it had inquired into such and had been informed that an
EPA certification was all that was needed.
Unfortunately, unlike with Cummins’ management
complaint, Pepsi-Cola did not concede on this issue. Instead.
Pepsi-Cola maintained its belief that Cummins was not subject
to recall, that Arnett was properly transferred for training
purposes, and that Arnett was qualified. In turn on the basis
of the
provided information, and on Thompson’s reading of the
recall clause, Thompson determined that Cummins’ grievance
should not be taken to arbitration.
Cummins now argues that the Union’s decision was both
arbitrary and improvident, especially in light of the evidence
that Arnett did not actually receive any training in PIkeville
and that certification had been required prior to the merger.
Cummins contends that Union failed to investigate and bring
to light such information. In so doing, them the Union failed
to adequately represent him.
Aithough the Union is expected to “undertake reasonable
investigation to defend a member_{,]...{a] union does not...
have to exhaust every possible remedy requested by a member
.... Black, 15 F.3d at 585. Further, it is not considered a
breach of the union’s duty, if the information it failed to
uncover and present would not have “brought about a
different decision.” Id.
Essentially, in order for Cummins to prove that the Union
violated its duty of fair representation, Cummins must show
l6a
that the Union acted in bad faith, discriminately, or arbitrarily;
ordinary negligence or mistaken judgment is not enough. See
Linton v. United Parcel Service, 15 f.3d 1365, 1372 (6th
Cir. 1994). And, in order to prove that a union has acted
arbitrarily, Cummins must show that “in light of the factual
and legal landscape at the time of the union’s actions, the
union’s behavior is so far outside a ‘wide range of
reasonableness,’ Ford Motor Co. v. Huffman, 345 U.S. 330,
338, 73 s.ct. 681, 686, 97 L.Ed. 1048 (1953), as to be
irrational.” Air Line Pilot Ass’n Int'l v. O’ Neill, 499 U.S.
65, 111 s.ct. 1127, 1130 (1991).
Cummins has failed to set forth any facts which would
evidence that the Union acted in bad faith or discriminately,
see Vaca v. Sipes, 386 U.S. 171, 193-95 (1967); in fact
Cummins complaint merely states that the Union’s failure and
refusal to prosecute his grievance was arbitrary. Plaintiff's
complaint at 30. However, such is not the case.
Thompson’s alleged failure to discern that Arnett had not
received the training or that certification had previously been
required prior to the merger would not have changed the
outcome of this matter. See Walk v. P*1*E* Nationwide,
Inc.,958 F.2d 1323, 1326-27 (6th Cir. 1992). Thompson,
instead made his determination to not arbitrate the grievance
on the basis that Arnett and Damrell were in the same
department and that no vacancy had occurred. Since that
decision was rational in light of the circumstances, the
Union’s refusal to arbitrate the grievance was not arbitrary.
See Nida, 7 F.3d at 526, Walk,958 F.2d at 1326-1329.
Thus, Cummins’ claim that the Union breached its duty of
adequate representation is meritless.
17a
SUMMATION
In order to sustain a claim under his hybrid section
301/breach of fair representation action, Cummins had to
show both that Pepsi-Cola breached the CBA and that the
Union failed to adequately represent him. Because Cummins
has been unable to show one of the requirements, much less
both of the requirements, Cummins claim fails as a matter of
law. As there is not genuine issue as to any material fact in
this matter, the defendants are entitled to summary judgment.
See Ryan, 929 F.2d at 1109.
Having so stated,
It is ORDERED herein:
(1) The defendants’ motions for summary judgment
(Record Nos. 57 & 60) be, the same hereby are, GRANTED.
(2) Having granted the motions for summary judgment,
the recently filed motions in limine (Record NOs. 95 & 97), as
well as any other pending motions, be and the same hereby
are, DENIED AS MOOT.
(3) All scheduled proceedings, including the pre-trial
conference, be, and the same hereby are, CONTINUED
GENERALLY.
(4) There being no other outstanding issues to be decided
in this case, this is a final and appealable order: a separate
Judgr cent shall be entered herewith.
This the 18th day of February, 1998.
/s/_ Joseph M. Hood, Judge
Date of Entry and Service: February 20, 1998.
18a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE
CIVIL ACTION NO. 96-382
BRET CUMMINS,
PLAINTIFF,
V. JUDGMENT
PEPSI-COLA COMPANY, UNITED
STEELWORKERS OF AMERICA, AND
UNITED STEELWORKERS OF AMERICA
UNION LOCAL NO. 12593
DEFENDANT.
*KEHRHEE EH KE
In conformity with the Memorandum Opinion and Order
of even date,
IT IS ORDERED that this matter be, and the same
hereby is, DISMISSED WITH PREJUDICE and
STRICKEN FROM THE COURT'S ACTIVE DOCKET.
lhe defendants are awarded costs pursuant to Fed. R. Civ. p.
54 (d). This is a final and appealable Order, and there is no
just cause for delay.
This the 18 th day of February, 1998.
/s/ Joseph M. Hood, Judge
Date of Entry and Service: February 20, 1998
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.