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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 1029

## Text

~*~ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1606%3A1. Public record. Not legal advice.