Petition for Writ of Certiorari — Barclay v. Alabama Gas Corp.

~*~ FILED

Y 9? 678 0CT 16 1997

No. Uirive ur sit LLENK

In The

Supreme Court of the United States

he

October Term, 1997

ERVIN BARCLAY,

Petitioner,

vs.

ALABAMA GAS CO. and GAS FITTERS LOCAL UNION

NO. 548,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

NATHANIEL D. OWENS

Counsel of Record

REMEDIES LEGAL SERVICES, P.C.

Attorney for Petitioner

P.O. Box 2641

Anniston, Alabama 36202

(205) 236-0111

72219 utz

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 Beenie

ervices, inc.

i

QUESTION PRESENTED

Is a civil litigant entitled to post-judgment relief pursuant

to Federal Rule of Civil Procedure 60(b)(6) when post-judgment

evidence indicates that the litigant was denied its due process

right to a fair trial because summary judgment was granted to

both defendant Gas Fitters Union Local 548 (hereafter “Local

Union 548”), even though the defendant breached its duty of

fair representation and defendant Alabama Gas Corporation

(hereafter “The Company”) which wrongfully terminated the

civil litigant in violation of the collective bargaining agreement

between the company and the union.

il

TABLE OF CONTENTS

Page

Conieb Teens. oo 5 ee i

Be POPSET PO EE Ape Pere Cre ii

rrr et er at ir ili

PE ee ET Bp BE ES l

SIMCMICRE OF FUNINGROTIOR 6 ook n vec cc ccccebesuess !

Constitutional Provision and Rule Involved ......... ]

Stonnmnent OF ae Ce 5s ss vi hei cis hcncaaanee nes 2

A. Backinound Of The 1997 Sota SER Oe 3

D. Ret PRORORE BO ooo eiccc ss cha cents 4

Reasons for Granting the Writ .................... 6

I. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court’s Prior

Rulings On The Essential Due Process Right Of A

Litigant, Even Though He Is Pro Se, To Have His

Case Fully Adjudicated In A Court Of Law Instead

Of Summary Judgment Being Granted, When The

Court Actually Finds That There Exists Material

Chepntes CE BM 8 6 50S 6 vac bce veweseaias 6

iii

Contents

Page

Il. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court’s Prior

Rulings On The Importance Of Due Process And

Fair Representation In The Arbitration Process.

PPE ye EOC el Neg PRN ep a he ea ee 9

RII 65 Gnd aes Ga a BAe kbc es 8 wD 18

TABLE OF CITATIONS

Cases Cited:

Chanel Inc. v. Italian Active Wear Inc., 931 F.2d 1472 (1 ith

Ra BEC ck bao done ns Chee Nev ckaes hues 8

Clark v. Coats and Clark, Inc., 929 F.2d 604 (11th Cir.

hs eo vo hace ob hed FeO Eee eRe AUS BELEN DES 7

Clemons v. Daugharty County, 684 F.2d 1365 (11th Cir.

ee SUN eb CNUs anak cans cow dweneaeivs ba 7

Dogherra v. Safeway Stores, Inc.,484 F. Supp. 396 (1980)

DAWA Ee JOOS wad Ch sks CHS od <6 4a Wee RK KO 17

Hines v. Local Union No. 377, Chauffeurs, Team, W. &

Mk GA Rode BAO COPED es Sewn ek ewes aeons 11

Papavarits v. Communication Workers of America Local

Pes Te Fo BOO, GOR TIFFT) occ cas cicscccess BAe

iv

Contents

Page

Smith v. Hussman Refrigerator Co., 619 F.2d 1229 (1980)

eee Oe Pe ee ra bee Mera 9

Turnes v. Am South Bank, N.A., 36 F.3d 1057 (11th Cir.

AWD aden css We ek o aka swe ewe ene aes 8

United States v. Four Parcels of Real Property, 941 F.2d

BG CAFU aes TOE) on kv ce kab oe eee ees 7

Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d

Os fpr oss ss dans Hed aa ewe 10

Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991) ... 8

Warrior Tombigbee Transp. Co., Inc., v. M/V Nan Fung,

Gos Fae Sane (110 Cit. 1988) a ies ke tea cs 8

Statutes Cited:

FO as EG ONCES ik. 6 Caan wae ha hese e eieeeaes l

29 UDA ES Tee aes Sa i Ae eS 2,9, 17

2 Uris Ee POD: i ees 05 pk Ra 2

United States Constitution Cited:

Fats enn So a so RR ]

Contents

Page

Rules Cited:

Federal Rule of Civil Procedure 56(c) .............. 6

Federal Rule of Civil Procedure 60(b)(6) ........... Na -

APPENDIX

Appendix A — Judgment Of The United States Court Of

Appeals For The Eleventh Circuit Filed February 27,

SOOT ies K eho Rkh Ewe oa lee Es oa ke la

Appendix B — Memorandum Opinion And Order Of The

United States District Court For The Northern District

Of Alabama, Eastern Division Entered October 27,

IER Chick Cal wad & 6d hres (Rakes UR a aS 3a

Appendix C — Order Of The United States District Court

For The Northern District Of Alabama, Eastern Division

Entered October 5, 1995 .......c6c08- ne Nast ary 19a

Appendix D — Per Curiam Opinion Of The United States

Court Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing Filed July 18, 1997........ 23a

Petitioner, Ervin Barclay, respectfully requests that a writ

of certiorari be issued to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit in Ervin Barclay v. Alabama Gas Corporation,

Gas Fitters Local, Union #548 is reported at (App. A). The

opinion of the district court in Ervin Barclay v. Alabama Gas

Corporation, Gas Fitters Local, Union #548 is reported at (App.

B). The order of the district court dated October 5, 1995 in Ervin

Barclay v. Alabama Gas Corporation, Gas Fitters Local, Union

#548 is reported at (App. C).

STATEMENT OF JURISDICTION

The judgment of the United States District Court for the

Northern District of Alabama was entered on October 27, 1995

(App. B). The judgment of the United States Court of Appeals

for the Eleventh Circuit (“Court of Appeals”) was entered on

February 27, 1997 (App. A). The Court of Appeals denied a

timely petition for rehearing on July 18, 1997 (App. D).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION

AND RULE INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part: “No person shall .. . be deprived of

life, liberty, or property, without due process of law...”

2

Federal Rule of Civil Procedure 60(b)(6) provides:

(b) On motion and upon such terms as are

just, the court may relieve a party or a party’s

legal representative from a final judgment,

order, or proceeding for the following

reasons: .... (6) any other reason justifying

relief from the operation of the judgment.

STATEMENT OF THE CASE

Ervin Barclay, an Alabama Citizen, brought a pro se action

under 29 U.S.C. § 185 against his former employer, Alabama

Gas Corporation and the Gas Fitters Local Union 548, the labor

organization in which he was previously a member. Mr. Barclay

alleged that Alabama Gas Corporation violated a Collective

Bargaining Agreement by wrongfully discharging him and that

Union 548 breached it’s duty to represent him fairly in arbitrating

his complaint. The District Court granted Summary Judgment

in favor of Alabama Gas and Union 548. Mr. Barclay appealed

the judgment of the District Court to the Eleventh Circuit Court

of Civil Appeals on February 27, 1997, the judgment of the

District Court was affirmed.

Mr. Barclay employed the undersigned and a Notice of

Appearance and request for Extension of Time was filed on

March 20, 1997. A motion to file Out of Time was filed on March

27, 1997.

The fundamental question in this case is whether the Union

had a responsibility and duty to fairly represent all the members

within the bargaining unit as individuals as well as collectively.

To appreciate the significance of the issues presented by this

case, it is essential to consider the following:

3

A. Background of the 1997 Judgment.

On February 16, 1994 Defendant/Respondent Alabama Gas

Corporation (“the company”) fired Plaintiff/Petitioner Ervin

Barclay (Mr. Barclay), a nine year veteran construction

mechanic, for supposed “gross misconduct” when one of his

crew members (Jackson) pulled a knife on him at a job site. A

second crew member (Gilley) said Mr. Barclay had a gun. Mr.

Barclay denied having a gun, but admitted having pulled his

company issued service knife out of his pocket without opening

the blade and holding it down to his side, which may have caused

Gilley to believe Mr. Barclay had a gun. Gilley grabbed Jackson,

the man wielding the knife, by the arm, and said he’s got a gun.

Jackson repeated he’s got a gun, then he said “so you are going

to shoot me, huh!” Then Jackson put up his knife and as he

moved to the company truck he said “you've had it now!” Then

Jackson left the job site in the company pick-up, returned to the

service center and reported to Gordon Jones. Mr. Barclay’s two

company issued vehicles were searched, as well as the job site,

and no gun was found. Mr. Barclay was charged with Reckless

Endangerment by Howard Jackson, the fellow crew member with

the knife, and after trial in the municipal court of Talladega,

Alabama, Mr. Barclay was found not guilty.

On February 9, 1994 the company had over 275 miles of

pipe line in the Anniston District. Anniston District covered a

number of counties including both the city of Anniston and

Talladega, Alabama. From 1985 until February 1994 no other

black male had achieved the position of construction mechanic

in the Anniston District. Once Mr. Barclay completed welding

school, as a certified welder, he was eligible to move up from

being classified as a “crewman Ist class” to a “construction

mechanic.” Mr. Barclay knew that the construction mechanic,

supervisor of his crew was scheduled to retire, so he prepared

to replace him. By 1992, Mr. Barclay had begun his two (2) year

4

apprenticeship as a construction mechanic. Construction

mechanics supervise a two-person crew, both of which are

members of the Steeleworkers Union. The “crew member

position” is held by the least senior person in the crew. The next

“crew member position” would be crewman Ist class and the

“supervisor position” was the construction mechanic.

Membership in Union 548 was limited to skilled workers and

as a welder, Mr. Barclay qualified and left the other union

(Steelworkers Union 15456), which represented most of the

employees of the company, and joined Union 548. Mr. Barclay

was the first black male to join this union in the Anniston District.

Mr. Barclay was not warmly received by the membership of

Union 548. Mr. Barclay was a quiet man, and had been a hard

worker for over nine (9) years.

Gordon Jones was the construction mechanic supervisor

over the Anniston District. Gary Welch was the manager of the

Talladega office of the company. The company headquarters are

located in Birmingham, Alabama. Race relations within the

Talladega office were tense. A complaint had been filed at the

Birmingham Headquarters by a black female over her

mistreatment in the Talladega office.

After both men were fired, Mr. Jackson had a grievance

filed on his behalf by a union representative of the Steeleworkers

Union 15456, and Mr. Barclay, a member of Union 548, had a

grievance filed on his behalf, which went to arbitration. One

arbitrator was appointed for Mr. Barclay’s grievance, instead of

three as per the 1992 Collective Bargaining Agreement (“CBA”).

The arbitrator affirmed that the discharge was for a just cause.

B. The Proceedings Below.

In an effort to address what he considered a violation of his

5

“Constitutional Rights”, Mr. Barclay, filed suit Pro se in the

United States Federal District Court, alleging that the Union

had breached it’s duty of fair representation by acting arbitrarily

and discriminatorily in it’s treatment of him following the

arbitration. Mr. Barclay claimed that the actions of defendant

Labor Union violated the “Constitutionality and Construction”

of § 301(A) of the Labor Management Relations Act (29 U.S.C.

§ 185(A)) conferring jurisdiction on Federal District Courts in

actions for violation of contracts between the employer and the

labor organization. In addition he filed suit against the Gas

Company for wrongful termination in violation of the Collective

Bargaining Agreement between Defendant Local Union #548

and the Company. While Plaintiff was still Pro se, and as soon

as the lawsuits were served and answers were filed by the

defendants, a Motion for Summary Judgment quickly followed

on behalf of both defendants. The District Court recognized that

there existed a “material question of fact” the Collective

Bargaining Agreement called for three arbitrators to hear the

arbitration and the evidence reflected that only one arbitrator

heard the case. This should have called for the court’s October

5, 1995 order to have read summary judgment denied. The

dynamic set up by the language of the court’s pre-decision order

dated October 5, 1995, wherein the court stated,

Without precommitting to anything, if the

two defendants in this case want this court

to give serious consideration to their motion

for summary judgment, they will by 4:30,

October 13, 1995, submit affidavits or other

relevant evidentiary material to meet the

court’s concerns as above expressed.

if the requirements had not been met by the defendant(s),

movant(s) at this point for the judge to be able to grant summary

judgment, then the motion should have been denied. (See App.

ich

6

REASONS FOR GRANTING THE WRIT

I.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S PRIOR RULINGS ON THE ESSENTIAL DUE

PROCESS RIGHT OF A LITIGANT, EVEN THOUGH HE

IS PRO SE, TO HAVE HIS CASE FULLY ADJUDICATED

IN A COURT OF LAW INSTEAD OF SUMMARY

JUDGMENT BEING GRANTED, WHEN THE COURT

ACTUALLY FINDS THAT THERE EXISTS MATERIAL

QUESTIONS OF LAW.

Mr. Ervin Barclay’s Petition for Writ of Certiorari should

be granted because the opinion below conflicts with this Court's

prior rulings on a litigant’s fundamental due process right to a

fair trial, even though Pro se. -

The District Court stated in it’s written opinion dated

October 27, 1995 as follows concerning Rule 56(c) of the Federal

Rules of Civil Procedure wherein it states, in pertinent part:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judgment as a matter of law.

Pursuant to this requirement

the moving party (must) . . . show the District

Court, by reference to materials on file, that

7

there are no genuine issues of material fact

that should be decided at trial.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);

Clemons v. Dougherty County, 684 F.2d 1365 (11th Cir. 1982).

The exact weight of this burden depends on whether the movant

bears the burden of proof at trial. In United States v. Four Parcels

of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en

banc), the Eleventh Circuit distinguished these two discrete

situations:

When the nonmoving party has the

burden of proof at trial, the moving party is

not required to “support its motion with

affidavits or other similar material negating

the opponent’s claim,” Celotex, 477 U.S. at

323, 106 S.Ct. at 2553, in order to discharge

this “initial responsibility.” Instead, the

moving party simply may “ ‘show( )’ — that

is, point ( ) out to the district court — that

there is an absence of evidence to support

the nonmoving party’s case.” Jd. at 324, 106

S.Ct at 2554. Alternatively, the moving party

will be unable to prove its case at trial. /d. at

331, 106 S.Ct. at 2557 (Brennan, J.,

dissenting).

When the moving party has the burden

of proof at trial, that party must show

affirmatively the absence of a genuine issue

of material fact: it “must support its motion

with credible evidence . . . that would entitle

it to a directed verdict if not controverted at

8

trial.” Jd. at 331, 106 S.Ct. at 2557 (Brennan,

J., dissenting); see also Chanel, Inc., 931 F.2d

at 1477. In other words, the moving party

must show that, on all the essential elements

of its case on which it bears the burden of

proof at trial, no reasonable jury could find

for the non-moving party. See Jd. at 1477.

(Footnote omitted). In the instant case, the motion was filed by

the party not bearing the burden of proof at trial.

The District Court additionally stated: “[w]e view all

evidence and reasonable factual inferences drawn therefrom in

the light most favorable to the party opposed to the motion.”;

Warren v. Crawford, 927 F.2d 559, 561-562 (11th Cir. 1991);

Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d

1294, 1296-97 (11th Cir. 1983).

... Once the movant meets his burden...

the burden shift(s) to the non-moving party

to demonstrate that there is indeed a material

issue of fact that precludes summary

judgment.”

929 F.2d at 608: Chanel, Inc. v. Italian Activewear, Inc., 931

F.2d 1472, 1477 (11th Cir. 1991). (See Appendix B).

As stated by the Eleventh Circuit Court in the case of Turnes

v. Amsouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994):

“summary judgment is appropriate where there exists no genuine

issue of material fact and the movant is entitled to judgment as

a matter of law.”

Both defendants then filed affidavits that stated, “in essence

we have violated the conditions of the CBA”. Upon receipt of

Pe RRR SM 8 ay SAT re ee

PER RRL eI Ne 7; 6 Rea

Ss

9

these two affidavits the court granted summary judgment. (See

App. B).

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S PRIOR RULINGS ON THE IMPORTANCE OF

DUE PROCESS AND FAIR REPRESENTATION IN THE

ARBITRATION PROCESS.

The Labor Management Relations Act, 1947, § 301, 29

U.S.C. § 185, states the following:

Labor Unions, as exclusive bargaining agents

in negotiation and administration of

collective bargaining contracts have a

responsibility and a duty to fairly represent

employees within the bargaining unit as

individuals and well as collectively.

In Smith v. Hussman Refrigerator Co., 619 F.2d | 229 (1980),

it states the following:

The duty of fair representation balances

the collective and the individual interests of

employees in the bargaining unit as these

interest are represented by a labor

Organization in order to promote the goals

of congressional labor legislation, to

minimize industrial strife and encourage full

production. In particular, “the duty of fair

representation has stood as a bulwark to

prevent arbitrary union conduct against

individuals stripped of traditional forms of

10

redress by the provisions of federal labor

law.”

Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 17 L. Ed. 2d

842 (1967).

The Defendant/Respondent Union breached it’s duty to

fairly represent Mr. Barclay in violation of his Right to Due

Process. The Union attorney, Mr. Stockham, refused to allow

any issues of race to be brought into the arbitration hearing.

How could Mr. Stockham adequately represent Mr. Barclay

when he had already decided to exclude the pertinent issue of

race? How could he, in good conscience, do this, knowing full

well that Mr. Barclay was the first black man to reach the position

of construction mechanic in the Anniston district. Mr. Barclay

was also the only black man to be a member of Union 548 at

that time. In the Anniston District, race was an issue which was

ignored in spite of the fact that Mr. Barclay’s race put him into

a unique position. Mr. Stockham failed to call witnesses who

could show the constant insubordination and threats that Mr.

Barclay had to deal with on a daily basis. He failed to call any

Union officials or members who would have testified, beyond

Roy Champion, on behalf of Mr. Barclay. Mr. Stockham failed

to allow Mr. Barclay to defend himself, in that he asked Mr.

Barclay only one question, which had nothing to do with the

incident which caused the arbitration hearing in the first place.

He failed to address the fact that the company’s mid-level

management had perpetually found ways to undermine Mr.

Barclay’s authority as a construction mechanic. The District

Court, in it’s opinion, stated “that Mr. Stockham’s claim for

$11,000 created an assumption that he fairly and to the best of

his ability defended Mr. Barclay.” Why had there not been any

questions of any employees other than Mr. Gilley, Scott Cooper,

and Roy Champion about the relationship between Mr. Barclay

PERE RENIN OPT Re nN SH NRO RRR Ean

1]

and Mr. Jackson? The rest of the time he was there, Mr. Barclay

was questioned by the attorney for the company and the

arbitrator. The actions of Mr. Stockham appeared to indicate

that the attorney for the company, the arbitrator and Mr.

Stockham were all on the same side. Further, did the attorney

for the union, Mr. Stockham, know that the black employees,

Mr. Gilley and Mr. Jackson, who were working under Mr.

Barclay’s supervision, exhibited resentment, and created a

challenge to his authority. Would the fact that the arbitrator

received no testimony from Jackson, the knife wielding crew

member, affeci his ability to see the truth of the facts being

testified to by others. Mr. Stockham and the Union

Representative stormed out of the arbitration room when Mr.

Barclay responded to the arbitrator’s question “on the date of

the incident did he own or possess a derringer?” What was the

purpose of Mr. Stockham’s storming out of the arbitration

hearing, at that point? A reasonable lawyer would have objected

before his client had an Opportunity to answer this double

question, instead, Mr. Stockham jumped up and left the room.

In the case of Hines v. Local Union No. 377, Chauffeurs, Team..,

W. & H., 506 F.2d 1153 (1974), we quote,

there are allegations of bad faith and the

assertion of a reason for it, and the district

court’s ruling that “plaintiff’s have failed to

reveal even a threshold issue of bad faith”

should not have been made without affording

them the opportunity to prove this contention.

Mr. Stockham’s actions appeared to have been an act of

“bad faith,” when he stormed out of the arbitration hearing

created a negative impression on the arbitrator. When a client

has made a response that has potential negative impact, it is the

duty of his lawyer to respond with “damage control” and not by

exiting the room. In the case of Papavarits v. Communication

12

Workers of America Local 31207, 772 Supp. 604 (1991), the

court says that the acts must be outside a wide range to be

irrational. Mr. Stockham, representing the first black union

member (Mr. Barclay) of Union 548, as well as, the first black

construction mechanic in the Anniston district, told his client

(Mr. Barclay) the day before the arbitration hearing “we are not

going in there with no racial stuff.” To disregard racial

discrimination in certain arbitration matters may be considered

bad faith conduct on the part of the union attorney. Mr. Stockham

was aware of the actions of the white mid-level managers, Welch

and Jones, undermining the authority of Mr. Barclay, which

encouraged Jackson, the knife wielding crew member, to

threaten Mr. Barclay. Why was Howard Jackson, the knife

wielding attacker not called as a witness? Mr. Howard’s

testimony would have tied the undermining of Mr. Barclay’s

authority to the confrontation of February 9, 1994. The litigant

was wrongfully terminated by the actions of defendant company

through acts of mid-level managers which compromised the

integrity of the arbitral process.

° When Mr. Barclay was selected to begin his apprenticeship

training in Anniston, the main headquarters in Birmingham

allotted Mr. Barclay a car for his use to travel from Talladega

to Anniston for that training. Gordon Jones, construction

supervisor, and Gary Welch, plant manager Talladega,

scheduled Mr. Barclay to go on work assignments instead

of allowing him to receive the training he was supposed to

be receiving in Anniston. This continued until upper

management in Birmingham found that the tag on the vehicle

which Mr. Barclay was supposed to be using, was expired.

This alerted the Birmingham office to inquire into the matter,

the resolution was such that the car was returned to

Birmingham and Gary Welch was instructed to send Mr.

Barclay to apprenticeship training even if he had to take his

crew with him.

13

After graduating from the welder’s school and receiving

his certificate, in order to become a construction mechanic,

Mr. Barclay was required to take a Journeyman Test. The

company provided the text books (called a “six pack”) to

assist Mr. Barclay in preparing for the test. Mr. Barclay

however was denied use of these books until three weeks

before the test because Gordon Jones said that Gary Welch

was responsible to give him the books and Gary Welch

claimed Gordon Jones should have given him the books.

According to the teachers of the course and other students,

Mr. Barclay should have received these books six months to

a year before taking the test. Mr. Barclay failed his first test

because he was prevented from properly preparing for the

test. On his second attempt to take the test he made a 97%.

While Isaac Booker was still alive and Jackson had been

assigned to Barclay, Isaac Booker was the shop steward for

Union 15456. Mr. Barclay’s crew worked two hours overtime

and the rule at that time called for the company to either

buy them supper and bring it to you or reimburse crew men

$3.50 and $4.00 for construction mechanics. Gary Welch

refused to pay the supper allowance to Mr. Barclay’s crew.

Isaac Booker went to the union steward for 548 and Gordon

Jones. The money was paid out of Anniston’s petty cash.

The next day when Mr. Barclay arrived at work, Gary Welch

was very angry and he let Mr. Barclay know under no

uncertain terms, if he found out that Mr. Barclay had said

anything to influence Gordon Jones in making Mr. Jones

reprimand Welch, he would make things hard for Mr.

Barclay.

That same afternoon Gordon Jones, Gary Welch and

Donald Hubbard (548 Union Shop Steward) while Mr.

Barclay was in Lincoln at a job site, and in front of crew

man Jackson, verbally attacked Mr. Barclay to the point of

14

bringing him to tears. The trio effectively conveyed to him

that they would force him out of the construction mechanic

position. Gordon Jones said, “If you say or mention anything

about the conversation we had yesterday regarding the

vouchers, your damn ass is going to be in trouble.” Mr.

Barclay threw up his hands and said, “I hope God kill me if

this is not what I said,” and he went on to tell in front of the

group exactly what had been said by Mr. Welch and what he

said to Gordon Jones. The Union Shop Steward for union

548, Donald Hubbard, a meter reader, did not say a word.

Because of the nature of his position, he had to have been

notified and arrangements made for him to come to the site

with Gordon Jones and Gary Welch. Why would Jones and

Welch bring a union steward to a job site to do what they

did? Up to this point Mr. Barclay had not experienced any

confrontations with the Union 548, however this meeting

planted a seed for the union and the company to join forces

in their effort to get rid of Ervin Barclay. It is interesting to

note that Mr. Welch and Mr. Jones stated to Mr. Barclay that

they would bust him back down to a crew man, and they

both instructed Mr. Barclay not to say anything to anybody.

They only left him when the confrontation started to draw

attention of people in the area. Mr. Barclay was still in tears.

After they left, Mr. Barclay went to the service center,

Vonald Hubbard, his Union Steward, talked to him and told

him, “don’t say anything to anybody else about what

happened and don’t worry about it.” A grievance should have

been filed immediately by this 548 Union Steward, but none

was filed. Mr. Barclay went home and told what had

happened io a friend who had access to the company’s main

office in Birmingham. He took notes on what he told him.

He told Mr. Barclay that some higher up individuals in

management already knew how Gordon Jones and Gary

Welch were treating him, giving him a hard time about the

job and that this confirmed it.

15

The very next time Mr. Barclay saw Gordon Jones, at the

next Safety meeting in Anniston, he was very upset and red.

Mr. Barclay knew Jones had been confronted by upper

management. Sam Presley, another construction mechanic,

had busted a water line and messed up a parking lot in Pell

City. Gordon Jones had in the past ranted and raved at such

things but this time he said almost nothing about it, Gordon

Jones was careful about everything that day. He treated Mr.

Barclay very coldly.

Not long after that Mr. Barclay’s personnel file was

removed from the Talladega office. Gary Welch had been

highlighting the minor mistakes made on orders and other

such paperwork that Mr. Barclay had done and put them in

his file. Gary Welch told him that, “in the future, since you

reported me to Birmingham, if you make a mistake, it will

go directly to Birmingham,” Mr. Barclay had never heard of

this kind of procedure before, instead of his files being kept

in the Telladega office where all the rest of employees had

files, his file had been sent to the main office in Birmingham

to keep Gary Welch from continually putting negative things

in his file.

Everyday Mr. Barclay was required to keep an inventory

of what was on his truck. Each morning he would fill out a

requisition for material used. Gary Welch said that it was

taking too much time for him to do this each day. Yet four

construction mechanics in Anniston did the same thing in

the same time frame. Gary Welch started making Jackson

believe that he could do the requisition that Barclay was

doing even though Jackson was in a different job

classification and a different union. Gary Welch told Mr.

Barclay that he was going to have Jackson start doing the

requisition for him. Mr. Barclay told Gary Welch that he did

not need Jackson to do that, but Mr. Barclay just wanted

16

Jackson to do what he was supposed to do for his own job.

Welch tried to cover himself by saying he was trying to get

their crew out faster. This was against company policy and

union policy. Gary Welch had talked to Jackson about it.

Mr. Barclay went to his shop steward about the matter. Gary

Welch was told a grievance would be filed if he kept trying

to force the issue.

Two days later Mr. Barclay got a call on his telephone

and one on his beeper from Bill Nelson who is over Anniston

Service Department. He told Mr. Barclay there was a leak

in Pell City, could Mr. Barclay catch it? Mr. Barclay asked

him who was to be working and Bill Nelson said he had

already contacted one Barclay’s crew to meet him at the

Service Center and he would try to reach the other crew

member while Mr. Barclay was on his way in to the service

center. Barclay returned to the Service Center to give him a

call and Nelson told him that he could not get his crew to go

to Pell City, but he would have a crew from Anniston meet

him out there. He further instructed him to call Gordon Jones

when he got close to Pell City and he would give him

directions on how to get to where they were. Gordon Jones

directed Mr. Barclay to the job site on Lee Road in Pell City.

When he arrived he saw Gordon Jones there, John Smith, a

service man, Sam Presley, a construction mechanic and a

female construction crew member. After parking, even

though there was another construction mechanic on site Mr.

Barclay was told to unload his tractor. He unloaded and

moved to the dig site and dug down to the gas main. The

woman crew member was cleaning the spot. They were going

to cut off the gas at the one house that was affected. The

woman and Mr. Barclay started cleaning off the main and

Mr. Barclay was told what work needed to be done by the

female crew man. Although Mr. Barclay was in a position

of higher authority than the female, she was ordering him

17

around in front of the other construction mechanic, and the

management employees. Mr. Barclay chose not to react to

the situation, then Sam started operating Mr. Barclay’s

machine. A few minutes later Mr. Barclay was told to operate

the machine himself. Then Gordon Jones came down there

and told Mr. Barclay to idle the machine down. It starting

going too low and he kept it from stalling and Gordon Jones

Starting cussing about how the idle on the machine was too

fast. Mr. Barclay had gotten the tractor idled about where

Mr. Jones wanted it. Then Mr. Jones started screaming “cut

it off”, it backfired and then Gordon Jones told him to load

the machine and “carry your ass back to Talladega.” Why

he did this could only be tied to Gary Welch and the incident

two days before with Jackson.

In addition to company mid-level management actions, the

following events took place which led to Mr. Barclay’s

termination:

° Sometime in early February 1994, a week or so before

February 9, Mr. Jackson stated to Mr. Barclay, “Mr. Jones

told me that if he gets one more complaint on you, you gone.”

This case is analogous to the Dogherra v. Safeway Stores,

Inc., 484 F. Supp. 396 (1980), because Mr. Barclay as did the

plaintiff in that case, claims that his action under § 301 of the

Labor Management Relations Act remains viable against the

company whether the claim of breach of the union's duty of fair

representation is proven because the company has tampered with

and subverted the contractual grievance process. The mid-level

management action against Mr. Barclay were so wrongful, so

discriminatory, so unfair that such action undermined the

integrity of the arbitration process and therefore, the adverse

ruling of the arbitrator in this case needs to be disregarded and

Mr. Barclay allowed to pursue his wrongful termination in the

18

District Court. If the action of the company mid-level

management were proven then the fact that Union 548 breached

it’s duty of fair representation would be an additional basis for

disregarding the arbitrator’s decision.

CONCLUSION

This case presents a question of exceptional importance —

whether a litigant is entitled to relief from a summary judgment

granted by the District Court to a labor union, and a defendant/

employer, alleged to have violated the collective bargaining

agreement by wrongfully terminating the plaintiff/petitioner, and

where the union breached it’s duty to fairly represent said

litigant. By granting this request for Writ of Certiorari this Court

can correct the Eleventh Circuit’s decision, which sustained the

District Court in defying this Court’s long-standing holdings

that a litigant has a due process right to fair representation

without being treated arbitrarily, discriminatorily, and/or in bad

faith, by ignoring meritorious grievance, or processes the

grievance in a perfunctory fashion.

Accordingly, Ervin Barclay, by and through the undersigned,

respectfully requests that the request for Petition for Writ of

Certiorari be granted.

Respectfully submitted,

NATHANIEL D. OWENS

Counsel of Record

REMEDIES LEGAL SERVICES, P.C.

Attorney for Petitioner

P.O. Box 2641

Anniston, Alabama 36202

(205) 236-0111

la

APPENDIX A — JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

FILED FEBRUARY 27, 1997

UNITED STATES COURT OF APPEALS

For the Eleventh Circuit

No. 95-7006

Non-Argument Calendar

District Court Docket No. CV-95-AR-1660

ERVIN BARCLAY,

Plaintiff-Appellant,

versus

ALABAMA GAS CORPORATION, GAS FITTERS LOCAL,

UNION N. 548,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Alabama

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the record

from the United States District Court for the Northern District

of Alabama, and was taken under submission by the Court upon

the record and briefs on file, pursuant to Eleventh Circuit Rule

34-3;

2a

Appendix A

UPON CONSIDERATION WHEREOF, it is now hereby

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be and the same is hereby

AFFIRMED.

IT IS FURTHER ORDERED that the plaintiff-appellant pay

defendants-appellees the cost on appeal to be taxed by the Clerk

of this Court.

Entered: February 27, 1997

For the Court: Miguel J. Cortez, Clerk

By: s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: 7/28/97

3a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA,

EASTERN DIVISION ENTERED OCTOBER 27, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

CIVIL ACTION NO.

95-AR-1660-E

ERVIN BARCLAY,

Plaintiff,

v.

ALABAMA GAS CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION

The court has before it separate motions for summary

judgment filed by defendants Gas Fitters Local Union No. 548

(“the Union”) and Alabama Gas Corporation (“Alagasco”) in

the above styled case. Plaintiff, Ervin Barclay (“Barclay”),

alleges that the Union breached its duty to fairly represent him

in a grievance filed against his former employer, Alagasco, which

resulted in an adverse ruling and a termination of Barclay’s

employment with Alagasco.

4a

Appendix B

I. Pertinent Undisputed Facts

Barclay was employed by Alagasco as a Construction

Mechanic, a position which placed him in charge of an Alagasco

construction crew. On February 9, 1994, Barclay was involved

in an altercation with Earl Jackson, a member of Barclay’s

construction crew, at an Alagasco work site in Talladega,

Alabama. As a result of an internal investigation of the

altercation, Alagasco terminated the employment of both

Jackson and Barclay on or about February 16, 1994.

On February 11, 1994, Barclay filed a written grievance

with the Union Plant Shop Steward, Scott Cooper, protesting

his termination. The grievance proceeded through the procedural

steps outlined in Article X (“grievance procedure”) of the

Collective Bargaining Agreement (“CBA”) then in force between

the Union and Alagasco. After Barclay was informed of an

adverse resolution of his grievance at Step Three of the grievance

procedure, he asked that his grievance be submitted to a Board

of Arbitrators (“the Board”) in accordance with Step Four, the

final step of the procedure.

Jack Clark (“Clark”) was appointed as arbitrator by the

Union and Alagasco, and attorney Richard Stockham

(“Stockham”’) was retained to represent the Union in prosecuting

Barclay’s grievance at arbitration Stockham spent approximately

90 hours in preparation for and prosecution of the arbitration.

In that time, Stockham met with Barclay, interviewed witnesses,

researched legal issues, filed a brief with the arbitrator, and

argued Barclay’s case at the arbitration conference which took

place on November 10, 1994.!

1. In his declaration filed pursuant to 28 U.S.C. § 1746, Stockham

States that he billed the Union for over $11,000 for legal services rendered

in this matter. Declaration of R. Stockham at 1.

Sa

Appendix B

At the conference, Clark heard arguments, received

evidence, and took briefs from both the Union and Alagasco.

On March 15, 1995, Clark released his Opinion and award

denying Barclay’s grievance.

Article X of the collective bargaining agreement, effective

on July 1, 1992, states as follows, in relevant part, the grievance

procedures at issue:

ARTICLE X — ADJUSTMENT OF

GRIEVANCES

A. STIPULATIONS:

Should any differences or disputes arise

between the Company and an employee

covered by this Agreement, there shall

nevertheless be no strike, slowdown or

Suspension or cessation of work of any kind

or to any extent. Neither shall there be any

lockouts by the Company. Differences,

questions or misunderstandings (collectively

herein called “grievances”) arising between

the Company and any one or more of its

employees covered under this Agreement

Shall be settled in the manner set out by this

Article X.

KK

A.1 STEP ONE (GRIEVANCE

PRESENTED TO OPERATING

SUPERVISOR): ...

2 KK

aa rn a ees rarer apy ry 7x need

6a

Appendix B

A.2 STEP TWO (GRIEVANCE

PRESENTED TO LOCAL

MANAGER): ...

KREXK*

A.3 STEP THREE (GRIEVANCE

PRESENTED TO CORPORATE

OFFICER): ...

KKK K

A.4 STEP FOUR (GRIEVANCE

PRESENTED TO BOARD OF

ARBITRATORS):

In the event such grievance cannot be

satisfactorily adjusted in the manner and

within the time specified in Step Three above,

it shall then be submitted in writing to

arbitration upon written notice of desire to

arbitrate given by either party to the other

within ten calendar days next following the

day on which the corporate officer of the

Company renders a written decision as

provided in Step Three next above. The

matter to be submitted to arbitration shall be

a copy of the written grievance filed in

accordance with the provisions of Step Two

of this Article X and none other. Arbitration

shall be accomplished by a Board of

Arbitrators, one member of which shall be

appointed by the Company and one by the

Ta

Appendix B

Union and a third shall be elected by the two

SO appointed by the Company and the

Union. ...

KK

The power of the Board of Arbitrators shall

be limited solely to the determination of

whether or not said grievance so submitted

in writing is justified, in whole or in part,

such determination to be effected by applying

a proper interpretation of the provisions of

this agreement to the facts as found by the

said Board. The Board of Arbitrators shall

render its decision in writing, delivering one

signed copy thereof to the Company and one

signed copy to the Union, and a decision of

the majority of the members of said Board

shall be final and binding on all parties.

Plaintiff's exhibit 2 at 30-32.

II. Analysis

a. Rule 56

Rule 56 states, in pertinent part:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue as to any

8a

Appendix B

material fact and that the moving party is

entitled to a judgment as a matter of law.

F.R.Civ.P. 56(c). The Supreme Court of the United States

interpreted this language in a trilogy of 1986 cases. See Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986);

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 106 S. Ct. 1348 (1986); see also LaTorre v. Connecticut

Mut. Life Ins. Co., 38 F.3d 538, 540 (11th Cir. 1994). As stated

by the Eleventh Circuit: “{[s]ummary judgment is appropriate

where there exists no genuine issue of material fact and the

movant is entitled to judgment as a matter of law.” Turnes v.

AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994) ; see

also Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir. 1995);

Warren v. Crawford, 927 F.2d 559, 561-62 (11th Cir. 1991).

The movant’s initial burden is to “infor[m] the district court

of the basis for its motion.” Celotex, 477 U.S. at 323, 106 S. Ct.

at 2553. Pursuant to this requirement, “the moving party [must]

.. Show the district court, by reference to materials on file,

that there are no genuine issues of material fact that should be

decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604,

608 (11th Cir. 1991); Clemons v. Dougherty County, 684 F.2d

1365 (11th Cir. 1982). The exact weight of this burden depends

on whether the movant bears the burden of proof at trial. In

United States v. Four Parcels of Real Property, 941 F.2d 1428,

1437-38 (11th Cir. 1991) (en banc), the Eleventh Circuit

distinguished these two discrete situations:

When the nonmoving party has the burden

of proof at trial, the moving party is not

required to “support its motion with affidavits

9a

Appendix B

or other similar material negating the

opponent’s claim,”’ Celotex, 477 U.S. at 323,

106 S.Ct. at 2553, in order to discharge this

“initial responsibility.” Instead, the moving

party simply may “ ‘show[]’ — that is, point[]

out to the district court — that there is

an absence of evidence to support the

nonmoving party’s case.” Jd. at 324, 106 S.Ct.

at 2554. Alternatively, the moving party may

support its motion for summary judgment

with affirmative evidence demonstrating that

the nonmoving party will be unable to prove

its case at trial. Jd. at 331, 106 S.Ct. at 2557

(Brennan, J., dissenting).

* * *

When the moving party has the burden of

proof at trial, that party must show

affirmatively the absence of a genuine issue

of material fact: it “must support its motion

with credible evidence . . . that would entitle

it to a directed verdict if not controverted at

trial.” Jd. at 331, 106 S.Ct. at 2557 (Brennan,

J., dissenting); see also Chanel Inc., 931 F.2d

at 1477. In other words, the moving party

must show that, on all the essential elements

of its case on which it bears the burden of

proof at trial, no reasonable jury could find

for the non-moving party. See id. at 1477.

(footnote omitted). In the instant case, the motion was filed by

the party not bearing the burden of proof at trial.

10a

Appendix B

Once the movant meets his burden, the non-movant must

show the existence of a genuine issue as to a “material fact.”

See Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1425

(11th Cir. 1992); Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552

(non-movant must show “the existence of an element essential

to that party’s case, and on which that party will bear the burden

of proof at trial.”). As the Eleventh Circuit held in Clark, “when

the burden has been met [by the movant] . . . the burden shift[s]

to the non-moving party to demonstrate that there is indeed a

material issue of fact that precludes summary judgment.” 929

F.2d at 608; Chanel, Inc. v. Italian Activewear, Inc., 931 F.2d

1472, 1477 (11th Cir. 1991). In order to determine “which facts

are material,” the court “examines the substantive law involved.”

Irby v. Bittick, 44 F.3d 949, 953 (11th Cir. 1995); see also Mulhall

v. Advance Sec., Inc., 19 F.3d 586, 589-90 (11th Cir.), cert.

denied, ___ U.S. __, 115 S. Ct. 298 (1994).

To ascertain whether the non-movant met his burden, the

court resolves all doubt against the moving party. Rollins v.

TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). As the

Eleventh Circuit held:

The party seeking summary judgment bears

the exacting burden of demonstrating that

there is no genuine dispute as to any material

fact in the case. In assessing whether the

movant has met this burden, the courts should

view the evidence and all factual inferences

therefrom in the light most favorable to the

party opposing the motion. All reasonable

doubts about the facts should be resolved in

favor of the non-movant. If the record

presents factual issues, the court must not

lla

Appendix B

decide them; it must deny the motion and

proceed to trial. Summary judgment may be

inappropriate even where the parties agree

on the basic facts, but disagree about the

inferences that should be drawn from these

facts. If reasonable minds might differ on the

inferences arising from undisputed facts, then

the court should deny summary judgment.

Clemons, 684 F.2d at 1368 (citations omitted); see also Turnes,

36 F.3d at 1060 (stating “[wJe view all evidence and reasonable

factual inferences drawn therefrom in the light most favorable

to the party opposed to the motion.”): Warren, 927 F.2d at 561-

62; Warrior Tombigbee Transp. Co., Inc. v. M/V Nan F ung, 695

F.2d 1294, 1296-97 (11th Cir. 1983).

The inference in favor of the non-movant is not, however,

unqualified.? An issue of material fact is “genuine” only if “a

reasonable trier of fact, considering the record evidence, could

find for the non-moving party.” Lee, 963 F.2d at 1425. “ ‘Mere

general allegations which do not reveal detailed and precise facts’

will not prevent the award of summary judgment.” Resolution

2. The Eleventh Circuit has cautioned that a liberal construction of

“material fact” cannot be used to functionally eliminate the efficacy of

summary judgments. In Brown v. Crawford County, 960 F.2d 1002, 1007

(11th Cir. 1992), two district judges wrote in a policy and procedures

Statement that “decisions of the Eleventh Circuit regularly demonstrate

(that) rarely can it be said without fear of contradiction that ‘there is no

genuine issue as to any material fact.’ ” The Eleventh Circuit strongly

objected, stating “[w]e are Particularly troubled by the misrepresentation

in the local summary judgment ‘procedure’ stating that this court

‘regularly’ finds genuine issues of material fact precluding summary

judgment.” /d. at 1010 n.11.

12a

Appendix B

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)

(citation omitted). Moreover, evidence that is merely colorable,

see Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir.

1988), conclusory, see Peppers v. Coates, 887 F.2d 1493, 1498

(11th Cir, 1989), or conjecture, does not create a genuine issue

of material fact.

b. The Duty of Fair Representation

Barclay’s complaint and subsequent submissions allege that

the Union breached its duty of representation (1) by handling

his grievance in a manner that “was arbitrary, discriminatory,

and in bad faith” and (2) by selecting only a single arbitrator

rather than choosing a board of arbitrators as required in the

grievance procedures.’ A final decision produced from

arbitration as provided in a collective bargaining agreement is

reviewable if tarnished by breach of a duty by the union. Hines

v. Anchor Motor Freight, Inc., 424 U.S. 554, 568 (1976). “To

prevail against either the company or the union, [an employee]

must not only show that his discharge was contrary to the

contract but must also carry the burden of demonstrating breach

of duty by the Union. [T]}his involves more than demonstrating

mere errors in judgment.” Hines, 424 U.S. at 570-71. A union

breaches that duty of fair representation whenever its actions

are discriminatory, arbitrary or in bad faith. Air Line Pilots Ass'n

Inter. v. O'Neill, 499 U.S. 65, 67 (1991) (citing Vaca v. Sipes,

386 U.S. 171, 190 (1967)).

3. Barclay also alleges that Alagasco breached the CBA by failing

to have a corporate officer review his grievance in accordance with Step

Three of the grievance procedure. Because intermediate procedural

questions are to be left to the Board of Arbitrators, Alabama Educ. Assn.

v. Alabama Professional Staff Org., 655 F.2d 607, 608 (Sth Cir. Unit B

Sept. 1981), this issue was waived because it was not presented to the

arbitrator and can not be raised for the first time on appeal.

wii

13a

Appendix B

In conjunction with its Rule 56 motion, the Union has

submitted evidence of its efforts in pursuing Barclay’s grievance

and has asked for a showing of proof from Barclay that the duty

of representation was breached. As for the manner in which the

Union actually handled prosecution of the grievance before the

arbitrator, Barclay has presented no evidence, and this court finds

no proof, that the Union's actions were arbitrary or that the Union

discriminated in any way against Barclay. On the question of

bad faith, the Union has presented a statement by the attorney

retained by the Union to represent Barclay's interest which states

that over 90 hours and $11,000 of legal fees were spent by the

Union arbitrating Barclay’s grievance. In that statement, attorney

Stockham also declares that Union officials did not interfere

with his efforts to win the arbitration but rather “gave [him] all

of the support he needed in the effort to prevail ....” Barclay

has not responded with any evidence that presents a genuine

issue of whether the Union improperly handled the prosecution

of his grievance before the arbitrator. As such, the Union is

entitled to judgment in its favor on that issue.

At first this court was somewhat disturbed by the Union's

failure to require the formal appointment of a three-member

arbitration panel, choosing instead to proceed with a single

arbitrator. The evidence clearly demonstrates that only one

arbitrator, Jack Clark, actually was chosen and sat rather than

the three arbitrators seemingly required by a strict or literal

reading of Step Four of the grievance procedure. Responding to

the order of the court, the Union has come forward with the

affidavit of David Connell which declares that to his knowledge,

Alagasco and the Union have never actually employed a three-

member panel when Step Four has been invoked. Instead,

according to Connell, representation of the Union and Alagasco

(who could be deemed partial arbitrators) have chosen, at least

|

l4a

Appendix B

over the past 27 years, to mutually agree on one genuinely

independent arbitrator to resolve the issues being arbitrated.

Thus, the question before the court becomes whether the Union

could effectively waive the three-member panei requirement

without also breaching its obligation to fairly prosecute Barclay’s

grievance.

The Union must “be accorded a wide range of discretion in

dealing with representation matters ....” Papavarits v.

Communication Workers of America, Local 3107, 772 F. Supp.

604, 607 (S.D. Fla. 1991). “[A] union's actions are arbitrary

only if, in light of the factual and legal landscape at the time of

the union's actions, the union's behavior is so far outside of a

‘wide range of reasonableness’ . . . as to be irrational.” Air Line

Pilots, 499 U.S. at 67. “[MJere negligence, even in the

enforcement of a collective-bargaining agreement, [will] not

state a claim for breach of the duty of fair representation.” United

Steelworkers of America v. Rawson, 495 U.S. 362, 372-73

(1990).

Given that the question of the Union’s possible waiver must

be judged by this standard of “reasonableness” rather than one

of “negligence,” this court must contrast the requirements of

Step Four with the actions actually taken by the Union. The

relevant portion of Step Four states that “[a)rbitration shall be

accomplished by a Board of Arbitrators, one member of which

shall be appointed by the Company and one by the Union and a

third shall be elected by the two so appointed by the Company

and the Union.” However, the crux of the declarations submitted

by both the Union and Alagasco reflect the reality of this

requirement — having a Union representative and a company

representative on the panel merely creates a “rubber stamp”

majority for whichever side is favored by the independent

1Sa

Appendix B

arbitrator. Recognizing the futility in having these opposing

advocates serve on the panel in order to comply with the letter

of Step Four, the Union and Alagasco have instead chosen to

comply with the spirit rather than the letter of the agreement by

having one individual, truly independent arbitrator hear the

grievance,

Having been enlightened by the parties that this procedure

is in fact the pattern and practice of the Union (and its

counterpart, Alagasco) in handling Step Four grievances, this

court finds the custom neither arbitrary or irrational. A variation

from the literal terms of a CBA does not necessarily show a

breach of the Union's duty, especially absent any fundamental

unfairness in the process afforded Barclay. See Ness v. Safeway

Stores, Inc., 598 F.2d 558, 560 (9th Cir. 1979). Because this

court concludes that the inclusion of a partisan Alagasco-

appointed panel member on a three-member Board would have

Only guaranteed the result actually reached by Clark acting

individually, the court now finds that plaintiff has not met his

burden in adducing proof that the Union breached its duty of

fair representation. Accordingly, the Union’s motion is due to

be granted.

b. Breach of the Employment Contract

The above-stated result makes the resolution of Alagasco’s

motion almost academic. In order to establish a hybrid § 301

claim under the Labor Management Relations Act, 29 U.S.C.

§ 185(a), plaintiff must demonstrate both that he has been

wrongfully discharged by the employer as well as that the union

violated its duty of fair representation in the handling of the

grievance. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554,

568 (1976). Because this rule from Hines has conjunctive

l6a

Appendix B

requirements, plaintiff's failure to show a breach by the Union

precludes this court from considering whether the dismissal

violated the employment agreement. As a result, Alagasco’s

motion must also be granted.

Ill. Conclusion

Having considered the evidence and arguments submitted

by the parties, this court finds that no genuine issues of fact

exist on either the Union or Alagasco’s liability to plaintiff.

Applying the law to those facts, the motions of both defendants

for summary judgment are due to be granted. A separate and

appropriate order will be so entered.

Done this 27th day of October, 1995.

s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

17a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

CIVIL ACTION NO.

95-AR-1660-E

ERVIN BARCLAY,

Plaintiff,

v.

ALABAMA GAS CORPORATION, et al.,

Defendants.

ORDER

In conformity with the accompanying memorandum

opinion, the court EXPRESSLY DETERMINES that there exists

no genuine issue of material fact and that defendants, Alabama

Gas Company (“Alagasco”) and Gas Fitters Local Union No.

548 (“the Union”), are entitled to judgment as a matter of law.

Accordingly, it is

ORDERED, ADJUDGED and DECREED by the court that

the motions for summary judgment of Alagasco and the Union

be and the same are hereby GRANTED, and the action is

DISMISSED with prejudice.

Costs are taxed against plaintiff, Ervin Barclay.

18a

Appendix B

DONE this 27th day of October, 1995.

s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

19a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ALABAMA, EASTERN DIVISION ENTERED

OCTOBER 5, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

CIVIL ACTION NO.

95 AR-1660-E

ERVIN BARCLAY,

Plaintiff

v.

ALABAMA GAS CORPORATION, ET AL.,

Defendants

ORDER

In the opinion of this court the only material question of

fact not either agreed upon by the parties in the above-entitled

cause or proven by undisputed evidence in support of the motions

for summary judgment filed by defendants, Alabama Gas

Corporation (“Alagasco”) and Gas Fitters Local Union No. 548

(“the Union”), is whether Step Four of the grievance procedure

in the collective bargaining agreement between Alagaso and the

Union was complied with. In pertinent part that provision of

the agreement says:

20a

Appendix C

A.4 STEP FOUR (GRIEVANCE

PRESENTED TO BOARD OF

ARBITRATORS):

In the event such grievance cannot be

satisfactorily adjusted in the manner and

within the time specified in Step Three above,

it shall then be submitted in writing to

arbitration upon written notice of desire to

arbitrate given by either party to the other

within ten calendar days next following the

day on which the corporate officer of the

Company renders a written decision as

provided in Step Three next above. The

matter to be submitted to arbitration shall be

a copy of the written grievance filed in

accordance with the provisions of Step Two

of this Article X and none other. Arbitration

shall be accomplished by a Board of

Arbitrators, one member of which shall be

appointed by the Company and one by the

Union and a third shall be elected by the two

so appointed by the Company and the

Union. ...

* * *£ * *

The power of the Board of Arbitrators shall

be limited solely to the determination of

whether or not said grievance so submitted

in writing is justified, in whole or in part,

such determination to be effected by applying

a proper interpretation of the provisions of

sical)

2la

Appendix C

this agreement to the facts as found by the

said Board. The Board of Arbitrators shall

render its decision in writing, delivering one

signed copy thereof to the Company and one

signed copy to the Union, and a decision of

the majority of the members of said Board

shall be final and binding on all parties.

Plaintiff's exhibit 2 at 30-32.

While it appears without question that Jack Clark (“Clark”)

acted as an independent arbitrator, the court does not find in the

record any proof that Clark was selected for that position by an

arbitrator appointed by Alagasco and an arbitrator appointed by

the Union, and that a majority of the three thus chosen made

the subject arbitral decision adverse to plaintiff, Ervin Barclay.

From this court’s prior experience, not Only as a judge but as a

lawyer and as a labor arbitrator, it knows that a “union” arbitrator

and an “employer” arbitrator invariably participate in the

arbitration decision only in a pro forma way, after having

selected the third-party, or the real, “arbitrator,” who, as a

practical and actual matter, makes the decision. And yet, there

is no evidence in the instant case of that fact or of such a modus

operandi by Alagasco and the Union as their means of complying

with Section Four as a mutually acceptable means of conforming

to the requirements of the collective bargaining agreement; or,

on the other hand, that in this instance all three arbitrators did,

in fact, hear the evidence, did take the matter under submission,

and together did deliberate as would a jury or a multi-membered

court, and thereafter did decide plaintiff's grievance by majority

vote. It may be possible by a combination of implication and

general knowledge to conclude that Clark was jointly picked by

individuals respectively named by Alagasco and the Union. But,

22a

Appendix C

in considering these motions for summary judgment, the court

is unwilling to decide by attempting an inference that might be

akin to speculation.

Without precommitting to anything, if the two defendants

in this case want this court to give serious consideration to their

motions for summary judgment, they will by 4:30 P.M. October

13, 1995, submit affidavits or other relevant evidentiary material

to meet the court’s concerns as above expressed. Plaintiff may

then respond as he sees fit within five (5) calendar days after

defendants, pursuant to this order, submit whatever they deem

appropriate. After the expiration of the said five-day period,

defendants’ motions for summary judgment will again be taken

under submission.

Although the planning report pursuant to Rule 26 is past

due, the parties are hereby relieved of that obligation until

October 27, 1995.

DONE this Sth day of October, 1995.

s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

23a

APPENDIX D — PER CURIAM OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DENYING PETITION FOR

REHEARING FILED JULY 18, 1997

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-7006

EVIN BARCLAY,

Plaintiff-Appellant,

versus

ALABAMA GAS CORPORATION, GAS FITTERS LOCAL,

UNION N. 548,

Defendants-Appellees.

On Appeal from the United States District Court for the

Northern District of Alabama

BEFORE: ANDERSON, BLACK AND BARKETT, Circuit

Judges.

PER CURIAM:

The petition(s) for rehearing filed by Appellant Barclay is

denied.

ENTERED FOR THE COURT:

s/ Rosemary Barkett

UNITED STATES CIRCUIT JUDGE