Petition for Writ of Certiorari — Pratt v. National Postal Mail Handlers Union, Local 305

Supreme Court, U8.

FILED

INTHE © oo: "

Supreme Court of the Anited States

OCTOBER TERM, 2001

JAMES L. PRATT, MICHAEL T. ANGELINI,

and ERIC J. BROWN,

Petitioners,

v. :

NATIONAL POSTAL MAIL HANDLERS UNION,

LOCAL 305 and UNITED STATES POSTAL SERVICE,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MICHAEL E. AVAKIAN*

SMETANA & AVAKIAN,

5211 Port Royal Road, Suite 103

S pene A 22151

(703) 321-9180

J. RAYMOND SPARROW, JR.

SHUMATE, KRAFTSON

& SPARROW, P.C. .

3900 University Drive, Suite 320

Fairfax, VA 22030

(702) 716-3100

*Counsel of Record for Petitioners

eee

QUESTIONS PRESENTED

1. Whether the court of appeals erred in finding that a

Union does not breach its duty of fair representation when

the Union revokes three employee grievance settlement

agreements that were obtained by them directly under the

collective bargaining agreement (“CBA”), because the

Union has later signed a memorandum of agreement

outside the grievance-arbitration provisions of the CBA

with the employer to do so.

2. Whether the court of appeals erred by creating a

conflict with the Fifth, Sixth, Seventh, and Eighth

Circuits by holding that employee grievance settlements

are no longer independently enforceable contracts under

Section 301 of the LMRA.

3. Whether the court of appeals erred by resolving on

summary judgment the meaning of the contract term

“nonbargaining unit” in the CBA, where the meaning of

the term was disputed by representatives of both the

_ Union and Postal Service management.

4. Whether the court of appeals erred by holding

contrary to this Court’s directive in General Drivers,

Warehousemen & Helpers, Local No. 89 v. Riss & Co.,

372 U.S. 517 (1963), that the federal courts may resolve

the meaning of contract language on summary judgment

rather that confining the parties to their contractual

grievance arbitration procedure to do so.

leis emanate

LIST OF PARTIES

Petitioners here are three individuals: James L. Pratt,

Michael T. Angelini, and Eric J. Brown.

The Respondents in this case are: The National Postal

Mail Handlers Union, Local 305 and the United States

Postal Service.

TABLE OF CONTENTS

Page

PUES E RIND PREOEINIED 66 tt ee eo es i

Sg Fe 6). Ge i

po kOe)». il

PARee OF AUTHORITIES ... wc cece ees iv

OT ge ee a ee ee es |

ee ee 2

RPRE WOU SIU VOUEIVEEDD 6 oc ee ee ees 2

weeeeeeeeres Or tite CASE... 2. eee es 3

REASONS FOR GRANTING THE WRIT ..... 12

THIS COURT’S INTERVENTION IS RE-

QUIRED TO CORRECT AN INTRACTABLE

DOUBLE STANDARD BY WHICH PARTIES

TO COLLECTIVE BARGAINING AGREE-

MENTS MAY NOW FREELY REPUDIATE

FINAL GRIEVANCE CONTRACT AWARDS

INURING TO THE BENEFIT OF

INDIVIDUAL EMPLOYEES ’........... 12

Ee a ae a ee 22

a

- iv -

TABLE OF AUTHORITIES

CASES

Page

Air Line Pilots Assn. v. O'Neill,

Ce ars Gr Ce os ee eee Oe ee 19

Bakers Union Factory, No. 326 v.

ITT Continental Baking Co..,

te F268 Soe oe Oe. TSR) oo one eee te cease 17

Coca-Cola Bottling Co. v. Teamsters, Local No. 688,

959 F.2d 1438 (8th Cir.), cert. denied,

Pea EP ERUED 6 « 0 oo ee a ees 18

Gainey v. Bhd. of Railway & Steamship Clerks,

SiS Fide oem Ce Ge. TSGS) 6 we ce eee es 13

General Drivers, Warehousemen & Helpers,

Local No. 89 v. Riss & Co.,

Fe Se eT a ae a ee 15, 19

Griffin v. UAW,

Sor Tae Fes CG OW. TPE) 6s sk ve ees 13-14

Hines v. Anchor Motor Freight, Inc.,

oe ar ee ee ho ee ee Oe eae Ss 16

International Union of Operating Engrs., Local 351,

165 F.30 DIG Gis Cor. ISR) ow ce teens 17

John Wiley & Sons v. Livingston, |

7re Gat ee CD, ie He ei Se ewe 14

Major League Baseball Players Assn. v. Garvey,

het Ge Ge Se ED cv ae aes owe eee ee 15

-V-

Natienal Postal Mail Handlers Union, Local 305

v. United States Postal Service,

594 F.2d 988 (4th Cir. 1979) .........0... 18

Niro v. Fearn Int’l,

827 F.2d 73 (7th Cir. 1987) ............. 17

Ohio Edison Co. v. Ohio Edison Joint Council,

947 F.2d 786 (6th Cir. 1991) ........0.2.. 18

Retail Clerks v. Lion Dry Goods,

woe Wim EF COD x 5 oe eee ee 13, 20

Ross v. Communications Satellite Corp.,

199 © ats Jao (4a Cir. WBS) 2. ce ween 21

Salmanis v. APWU, Local 7140 & USPS,

2001 U.S. Dist. LEXIS 2072, 145 Lab Cas. (CCH)

Til, 169 (N.D. TH. 2001)... we es 16

Steelworkers Local 4076 v. Steelworkers Local 1465,

338 F. Supp. 1154 (W.D. Pa. 1972) ........ 13

Steelworkers v. Warrior & Gulf Nav. Co..,

See UD. Fe I es C4 eee 14, 17

Tootsie Roll Indus., Inc. v. Local Union No. 1,

O54 F206 Gi (7 Cer. 1967) . kk ke ecu 18

UMWA Dist. 28 v. VP-5 Mining Co..,

630 F. Supp. 1210 (W.D. Va. 1986) ........ 17

Vaca v. Sipes,

Soa Sm. Fed CE ocr bse eee 16, 20

Zimmerman v. Faculty Assn. of the French Int’l School,

830 F.2d 1316 (4th Cir. 1987) .........0.. 21

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 2001

JAMES L. PRATT, MICHAEL T. ANGELINI,

and ERIC J. BROWN,

Petitioners,

Vv.

NATIONAL POSTAL MAIL HANDLERS UNION,

LOCAL 305 and UNITED STATES POSTAL

SERVICE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners James L. Pratt, Michael T. Angelini, and

Eric J. Brown (“Petitioners”) respectfully pray that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is unreported. The opinion of the

United States District Court for the Eastern District of

Virginia is also unreported. These opinions and Orders

7 o

are reproduced in the appendix at pages la and 13a,

respectively.’

JURISDICTION

The judgment of the court of appeals was entered on

January 10, 2002. A timely petition for rehearing was

filed on February 23, 2002, and denied on March 11,

2002. This Court has jurisdiction to review the judgment

of that court under 28 U.S.C. § 1254(1)

STATUTES INVOLVED

29 U.S.C. § 185(a) provides:

Suits for violation of contracts between

an employer and a labor organization

representing employees in an industry

affecting commerce as defined in this

chapter, or between any such labor orga-

nizations, may be brought in any district

court of the United States having juris-

diction of the parties, without respect to

the amount in controversy or without

regard to the citizenship of the parties.

39 U.S.C. § 1209(a) provides:

' “a” references are to the accompanying Appendix hereto.” “App.”

references are to the Joint Appendix filed in the court below.

Aa tit RBA Blane i epee,

- 3-

Employee-management relations shall, to

the extent not inconsistent with provi-

sions of this title, be subject to the provi-

sions of subchapter II of chapter 7 of title

29.

STATEMENT OF THE CASE

This Petition arises from the Fourth Circuit’s denial

of Petitioners’ appeal from an Order on summary judg-

ment granted to the two Respondents here. The appellate

court held that Respondent Union had not violated its duty

of fair representation when it entered into an agreement

with the Postal Service to revoke the Petitioner’s final

written grievance settlements. That decision completely

undermines the sanctity of the contractual obligatign the

Congress established under the Labor Management

Relations Act, 29 U.S.C. § 185.

On January 30, 1999, Petitioner Eric J. Brown

transferred from his full time mail handler position at the

Processing & Distribution Center in Merrifield, Virginia,

to a position in the Springfield, Virginia, Post Office as

a letter carrier. Prior to doing so, he discussed his

contractual ability to return to his mail handler job with

his Union Shop steward. Mr. Brown returned to Merri-

field five days later on February 5, 1999.

On July 18, 1998, Petitioner James L. Pratt, trans-

ferred from his full time mail handler position at Merri-

field, Virginia, to a position in the Stafford, Virginia,

Se

Post Office as a custodian. On July 3, 1999, he trans-

ferred back to the Merrifield plant.

Similarly, On April 10, 1999, Petitioner Michael T.

Angelini transferred from his full time mail handler

position at Merrifield, Virginia to a mail handler position

in the Tampa, Florida, Post Office Processing & Distribu- .

tion Center. Mr. Angelini also talked to the Union’s

Administrative Vice-President (“AVP”) John Holmes and

to union shop steward James McLaughlin about his right

to transfer back to Merrifield within one year. He

transferred back to the Merrifield plant effective less than

two months later (June 5, 1999).

Mr. Pratt had almost fourteen years of seniority in the

mail handler bargaining unit when he left. Before he did

so, he conferred with AVP Holmes. As an officer of

Local 305 under its Constitution and By-Laws, Mr

Holmes possessed the authority to interpret the union’s

contract and file grievances. 3a. He advised Mr. Pratt

that under the terms of the union’s collective bargaining

agreement (or “CBA”), he could leave for up to one year

and return as a full time mail handler with seniority,

minus the time he was away.

In each case, the individual Petitioner here was

advised that he might return as a Part Time Flexible

(“PTF”) employee? under Postal Service policy and that

*PTF status erased the guarantee of forty hours of work each

(continued...)

-5-

it was necessary to file a grievance to claim his contrac-

tual right to return under the CBA. Each Petitioner did

so. 3a.

The relevant provisions of the collective bargaining

agreements span two contract terms. The relevant part of

Article 12.2 G7 of the CBA, entitled “Principles of

Seniority,” reads as follows:

- An employee who left the bargaining unit on or

after July 21, 1973 and returns to the bargaining

unit:

G7b

G7b1

will begin a new period of seniority if the

employee returns from a nonbargaining unit

position within the Postal Service, unless the

employee returns within 2 years from the

date the employee left the unit except as

follows:

An employee who left the craft and/or instal-

lation after the date of the issuance of the

arbitration award determining the terms and

conditions of the 1994 National Agreement,

and returns to the craft and/or installation,

will begin a new period of seniority unless

the employee returns within J year from the

date that the employee left the craft and/or

installation. (Emphasis added).

*(...continued)

week, a dedicated five day work week, all holiday pay, the right to

bid on new job openings, the right to work any available overtime,

and all seniority privileges.

~ +

Every witness in the trial court agreed that the

collective bargaining unit covered in the 1994-98 and

1998-2000 Mail Handlers CBAs provides coverage for

“career mail handlers in the Postal Service” and not letter

Carriers, supervisors, or even casual employees.

In addition, a Letter of Intent accompanied each CBA

and was written by the Postal Service’s applicable chief

management labor official. It confirmed to the Union’s

National President, e.g., that “[dJuring negotiation of the

1994 National Agreement, we agreed that references to a

union, craft or bargaining unit are limited to the National

Postal Mail Handlers Union and the craft it repre-

sents....” See App. 392; 524 (emphasis added).°

Petitioner Brown after his short absence from the

USPS Merrifield facility, sought Union steward Frank

Murphy’s assistance to file a grievance to reclaim his

seniority under the contract. Mr. Murphy discussed the

situation with AVP Holmes. They agreed that Article

12.2 G.7 of the CBA applied to the Plaintiffs’ situations.

The two then met with the Postal Service’s Plant Manager

and the parties agreed that Mr. Brown should return with

his seniority. App. 282 11.10-17.

“1 A] letter of intent would have had the agreement of the union

before it became a letter of intent.” App. 474 I1.2-4. These Letters

of Intent are “prenegotiated.” /d. at Il.11-15.

+ 2

As a result of the filed grievances, each Petitioner

was restored to full-time status to his previous position -

with his seniority regained minus the days he was away.

Each of the written Grievance Settlements involved

here included the following provision:

By virtue of this full and final settlement agree-

ment, this document shall also serve as the

union’s official notification to management that it

is withdrawing this case from the Griev-

ance/Arbitration Procedure. Additionally, both

parties agree that the settlement is non-precedent

setting and will not be cited by either in any

subsequent grievance or arbitration hearing.

(Emphasis added).4

Some time after the Petitioners returned to Merrifield,

other union stewards took note of the fact that the Peti-

tioners had regained their seniority. The stewards’

ultimate complaint was that the return of Pratt and

Angelini hurt the other stewards by their superior senior-

ity under the contract. App. 415 Il.1-4.

Steward Burnside filed a grievance Claiming that the

Petitioners should have remained PTFs or that all other

PTFs should be made full-time regular employees and

made financially whole. The Postal Service denied

‘Petitioner Michael Angelini verbally protested his reduction in

employment and seniority status to the Union shift/tour chief shop

Steward and his grievance was settled by the Postal Service at Step

1 under Article 15.2 of the CBA consistent with the settlements

made concerning Petitioners Brown and Pratt.

~~

Burnside’s grievance at Step | of the Grievance-Arbitra-

tion Procedure on the grounds that the Plaintiffs’ situa-

tions were covered by Articles 12.2 G7b1 & 2 of the

CBA and they were entitled to return with appropriate

seniority. App. 228-30.

Consequently, this “Burnside” grievance was with-

drawn on August 24, 1999, with “[m]Janagement and the

Union agree[ing] to withdraw grievance #4#NOVA99-

DFBOI5 from any and all grievance procedures forth-

with.” App. 231 (emphasis added). Local 305 Union

President Jones instructed that the grievance be withdrawn

so that it would no longer be subject to the grievance

arbitration procedure of the CBA.

Several weeks later, local union and postal service

officials signed a memorandum of agreement that stripped

the three Petitioners of their grievance settlements.

In relevant part, the Memorandum of Agreement,

App. 352, found the Plaintiffs’ grievance settlement

agreements to be “unenforceable,” “declared null and

void,” ordered the plaintiffs to be reduced to PTF status,

and eliminated their accumulated seniority at Merrifield,

Virginia, within thirty days of the signing.

In Mr. Holmes’ experience as an AVP and 25 year

career as a union official, he never heard of a grievance

settlement being overturned by the independent action of

management or the union. App. 299 11.17-20. He

testified that an AVP does not have the power to make a

a

Soot its tab

hone sae a anal

local agreement with management to make a grievance

settlement “null and void” as occurred. App. 308 11.9-

14.

Despite this bar, the local Postal Service employee

who signed the Memorandum of Agreement stated she

felt the Petitioners “followed the right procedure. They

just got the wrong kind of settlement.” App. 383 I1.16-

17.

No representative of management or labor knew of

any provision in the contract for the overturning of a

contract based grievance settlement by the union or the

Postal Service. App. 199, 299, 300, 416 I1.12-15: 362

I].1-9, 396 11.10-15, 351 11.6-9. Neither had a party to

the CBA ever seen a Memorandum of Agreement be-

tween the Post Office and the union that “undid an

arbitration.” App. 416 II.1-2.

On August 24, 2000, the district court issued an

Order and Memorandum Opinion granting defendants’

Motions for Summary Judgment. App. 156; 163. The

district court first held that the Petitioners’ interpretation

of the undefined words “nonbargaining unit” in Article

12.2 G7b of the collective bargaining contract was

contrary to the position of the union and Postal Service

that “has always construed” the term “to mean supervi-

sory Or Management positions.” App. 158.

Union AVP John Holmes, however, had testified to

the meaning of “nonbargaining unit” which is contrary to

« 0

the meaning adopted by the district court and the Fourth

Circuit and that the CBA expressly permitted their return

to the craft:

Q. In a situation where a person in the mail

handler craft, let’s say in 1997, which is during

the period of time this is in effect, leaves the

Merrifield installation, and becomes a letter

carrier at Quantico, and then within one year of

leaving Merrifield returns, would that person be

able to regain their seniority?

A. My interpretation of that is yes.

App. 275.

The USPS’s Answers to Plaintiff Pratt’s First Set of

Interrogatories admitted that the ‘nonbargaining unit”

interpretation it and the Union professed in the Memoran-

dum of Agreement “is not explicitly defined in the

agreement” and that the “parties have neither directly

addressed nor attempted to redefine the meaning of the

term.” App. 67 46.

In addition, the Mail Handlers National Union

President knew of no provision of the contract to support

this interpretation. App. 479 I1.13-16. He also knew of

the existence of no documents that would define “nonbar-

gaining unit” in Article 12.2G7 to mean supervisory

employees. Jd. at 486 11.5-10.

=)

AVP Holmes further testified that part of his job was

to interpret and administer the contracts and this power he

possessed was under Article IV, Section 5E.6. of the

Uniform Local Union Constitution. App. 278 11. 13-22.

He testified that the correct interpretation of the word

“bargaining unit” in Article 12.2 G7c “meant the mail

handler bargaining unit...because that’s what the agree-

ment was dealing with.” App. 276 Il.11-16. He inter-

preted this Article to mean that the Plaintiffs “if they

came back within the year, they would have their senior-

ity, minus the time they were gone.” Holmes 276 II. 1-3.

The appellate court disregarded this testimony.

Specifically, it found that the Burnside grievance (con-

trary to its specific restrictive terminology as set forth

above) actually revoked the Petitioners’ settlement

agreements: “the Postal Service and the Union settled the

Burnside grievance by agreement to vacate the earlier

settlement agreements involving Pratt, Angelini, and

Brown, thereby returning those three employees to part-

time flexible status with entry-level, seniority, and to

withdraw the Burnside grievance.” 4a.

Moreover, the Fourth Circuit affirmed that the

summary judgment record proved that the interpretation

of the CBA rendered the restoration of Petitioners’

seniority to have been accomplished in contravention to

the National Agreement. Therefore, because the settle-

ments were erroneous, they did not need to be enforced

and the Union’s action to revoke them was not unreason-

able or in contravention to the Union’s duty of fair

representation.

REASONS FOR GRANTING THE WRIT

THIS COURT’S INTERVENTION IS RE-

QUIRED TO CORRECT AN INTRACTABLE

DOUBLE STANDARD BY WHICH PARTIES

TO COLLECTIVE BARGAINING AGREE-

MENTS MAY NOW FREELY REPUDIATE

FINAL CONTRACT AWARDS INURING TO

THE BENEFIT OF EMPLOYEES.

This case establishes a dangerous anomaly in the law

which threatens the very core of worker expectations that

their collective bargaining agreements and contract

grievance awards thereunder, will be enforceable and

respected. By upholding the district court’s conclusion

that the Petitioners’ grievance settlements were meaning-

less documents and its refusal to consider the Petitioner’s

material evidence, the decision below threatens all

employees’ right to access the courts to enforce settlement

agreements and to demonstrate violations of the duty of

fair representation. As a result, the court of appeals has

undercut a vital protection which this Court found

paramount in General Drivers, Warehousemen & Helpers,

Local No. 89 v. Riss & Co., 372 U.S. 517 (1963). This

Court’s supervisory review is required to rectify this legal

mistake.

ee

SS an See

ews

ee eae

»~ 43.

In General Drivers, the employer failed to comply

with a grievance committee ruling and the employees sued

under 29 U.S.C. § 185. This Court ruled that if the

award “is under the collective bargaining agreement final

and binding, the District Court has jurisdiction under §

301 to enforce it....It is not enough that the word ‘arbitra-

tion’ does not appear in the collective bargaining agree-

ment, for we have held that the policy of the Labor Act

‘can be effectuated only if the means chosen by the

parties for settlement of their differences under a collec-

tive bargaining agreement is given full play.”” 372 U.S.

at 519, (quoting United Steelworkers v. American Mfg.

Co., 363 U.S. 564, 566 (1960) (arbitration agreement)

and Retail Clerks v. Lion Dry Goods, 369 U.S. 17 (1962)

(enforcing settlement agreement).

When the Mail Handlers’ Union here sought to

undermine the Plaintiffs’ seniority by undertaking a non-

contract process to achieve its end, through the “Memo-

randum of Agreement,” it breached its duty of fair

representation in a manner not dissimilar to sacrificing

one set of employees’ rights “in favor of another stronger

or more politically favored group.” Gainey v. Bhd. of

Railway & Steamship Clerks, 313 F.2d 318 (3d Cir.

1963), or by changing the effect of an arbitration award

by ignoring its terms with the employer. Steelworkers

Local 4076 v. Steelworkers Local 1465, 338 F. Supp.

1154, 1162 (W.D. Pa. 1972). However, instead of

enforcing the settlement agreements as the “means cho-

sen...under the agreement,” the courts below gave

iis

priority to an “agreement” reached outside the CBA

process.

The range of “reasonableness” given the union’s

actions must be limited in these situations by the invoca-

tion of the contractually based grievance procedure in

order to correct alleged “mistakes.” “A union may not

arbitrarily ignore a meritorious grievance or handle it in

a perfunctory manner.” Griffin v. UAW, 469 F.2d 181,

183 (4th Cir. 1972). The Fourth Circuit’s decision does

not explain why the Union’s action outside the CBA

mechanism was not an invalid exercise of its delegated

authority in these circumstances.”

If the meaning of a CBA can be ascertained under a

grievance arbitration procedure, then that procedure must

be followed. Under Steelworkers v. Warrior & Gulf Nav.

Co., 363 U.S. 574, 582-83 (1960), and John Wiley &

Sons v. Livingston, 376 U.S. 543, 559 (1964), the

question concerning the meaning of the CBA cannot be

resolved by the court if the grievance process is available,

as the Fourth Circuit itself seemed to recognize, 6a. But,

its adoption of what the contract term meant vitiated the

authority agreed by the parties as the mechanism for

‘When a grievance settlement indicates it is “final” as the

Petitioners’ grievance settlements were “full and final” in the case

at bar, they “must be given effect.” Teamsters Local Unions v.

Braswell Motor Freight Lines, Inc., 392 F.2d 1, 8 (Sth 1968), cert.

denied, 401 U.S. 937 (1971). A bi-lateral decision not to follow the

settlement agreement is irrational and perfunctory under federal

labor policy.

Le

sg

resolving their contractual disputes and interpretations,

i.é., arbitration or invoking the special Step 4 provision

of the CBA grievance procedure to ascertain “the inter-

pretation of this Agreement.” App. 515, Section 15.3D.

See Major League Baseball Players Assn. v. Garvey, 121

S. Ct. 1724, 1729 (2001) (“established law ordinarily

precludes a court from resolving the merits of the parties’

dispute on the basis of its own factual determinations”).

The Fourth Circuit’s finding here that the positions of

the Union and Postal Service were “rational,” 6a, also

does not properly address the fact that actions to under-

mine a grievance settlement are irrational unless the

contractual grievance provisions were invoked to do so.

In this case they were not. By agreeing here to the

withdrawal of the Burnside grievance, the Postal Service

and the Union intentionally and deliberately dismissed the

only contractually specified mechanism available under

the CBA to revoke a grievanc. settlement and to validate

their position under the CBA.

Thus, if the award at bar is the parties’ chosen

instrument for the definitive settlement of griev-

ances under the Agreement, it is enforceable

under § 301. And if the Joint Area Cartage

Committee’s award is thus enforceable, it is of

course not open to the courts to reweigh the

merits of the grievance.

General Drivers, 372 U.S. at 519 (emphasis added).

= 2

It is strikingly contrary to the state of federal labor

law to permit a union to “depart” from its “normal

practices and established policies and procedures” to

revoke grievance settlements as occurred here. Under

these conditions, summary judgment should not have been

granted to the Respondents, especially where AVP

Holmes’ testimony put the meaning of the term “nonbar-

gaining unit” directly in dispute. See Salmanis v. APWU,

Local 7140 & USPS, 2001 U.S. Dist. LEXIS 2072 at

*23-24, 145 Lab Cas. (CCH) 411, 169 (N.D. Ill. 2001)

(denying summary judgment to the Postal Service and

Union on DFR claim where the parties settled a grievance

contrary to CBA procedures). The Fourth Circuit’s

decision does just that and extends a new union defense

to DFR lawsuits never before granted.

This Court in Vaca v. Sipes, 386 U.S. 171 (1967),

ruled that grievance settlement procedures “assure” that

“similar complaints will be treated consistently,” id. at

191, even if the employee was to protest the result. /d.

at 193. Here, the Congress’ statutory promise to the

nation’s workers was to protect grievance settlements.

Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554, 571

(1976).

There must be the assurance that the “finality rule”

will be maintained in the workplace. This Court in Hines

anticipated that “[t]he grievance processes cannot be

expected to be error-free. The finality provision has

sufficient force to surmount occasional amstances of

mistake.” 424 U.S. at 571.

re

The result imposed by the Fourth Circuit here

undermines the contractual grievance system as this Court

envisioned it would work. In these circumstances, “[t]he

contractual system would then cease to qualify as an

adequate mechanism to secure. individual _ re-

dress....Congress has put its blessing on private dispute

settlement arrangements provided in collective bargaining

agreements, but it was anticipated, we are sure, that the

contractual machinery would operate within some mini-

mum levels of integrity.” /d. This “machinery under a

collective bargaining agreement is at the very heart of the

system of industrial self-government.” Warrior Steel, 363

U.S. at 581. Here, however, the “heart” of the system

was deliberately evaded by the parties to the CBA.

The decision below further diverges from the national

norm where no federal court has ever permitted a settled

grievance to be undone outside the contractual grievance

procedure as occurred here. See Bakers Union Factory,

No. 326 v. ITT Continental Baking Co., 749 F.2d 350,

355 (6th Cir. 1984); Niro v. Fearn Int’l, 827 F.2d 73 (7th

Cir. 1987) (construction of grievance settlement subject

to resolution through grievance-arbitration procedure of

the CBA); UMWA Dist. 28 v. VP-5 Mining Co., 630 F.

Supp. 1210, 1213 (W.D. Va. 1986).

Rather, the Petitioners’ grievance settlements amend-

ed and supplemented the CBA. Z/nternational Union of

Operating Engrs., Local 351, 163 F.3d 916, 919 (Sth

Cir. 1999). These formal settlement agreements are

indeed the parties chosen means to resolve their labor

= =

disputes. As such, they are entitled to enforcement not

dissolution, as the other Circuit Courts have held. Coca-

Cola Bottling Co. v. Teamsters, Local No. 688, 959 F.2d

1438, 1440 (8th Cir.), cert. denied, 506 U.S. 1013

(1992); Ohio Edison Co. v. Ohio Edison Joint Council,

947 F.2d 786, 787 (6th Cir. 1991); Tootsie Roll Indus..,

Inc. v. Local Union No. 1, 832 F.2d 81, 84 (7th Cir.

1987).

Surprisingly, the decision below implicitly creates an

intra-circuit conflict with a prior decision of the Circuit

Court directly on point involving the two same Respon-

dents here: National Postal Mail Handlers Union, Local

305 & United States Postal Service, 594 F.2d 988 (4th

Cir. 1979). There, the court of appeals held that the

enforcement of grievance settlements did not have to

await further contract process, but became judicially

enforceable upon the individual settlement of each

grievance: “if the Postal Service remains adamant in its

refusal to implement grievance settlements, aggrieved

employees...would be subjected to an endless, fruitless

succession of grievance complaints and never realize the

benefits of an award. Further exhaustion manifestly

would be ineffective.”°

‘The Local 305 case is much like the one at bar, and there

Respondent Union sued the Postal Service for failure to implement

forty-five grievances reached by the parties at Steps 1 through 4 of

the grievance procedure short of arbitration and for violating

settlements reached in three class-action grievances brought to force

the Postal Service to simply “comply with the settlements in earlier

(continued...)

2

Although the court below relies on Air Line Pilots

Assn. v. O'Neill, 499 U.S. 65, 74.1991), for the general

standard that a union is entitled to a wide range of

deference with regards to the duty of fair representation,

7a, the duty “is akin to the duty owed by other fiduciaries

to their beneficiaries.” Jd. It is impossible to discern in

these circumstances how the duty to apply the “full and

final” effect to the Plaintiffs’ grievance settlements is

fulfilled by the Union signing a non-contract memoran-

dum, written by the Postal Service and executed by |

persons not authorized to do so, in order to strip Petition-

ers of their rights. Here, the Petitioners sought enforce-

ment of their grievance settlements under Section 301; the

Union’s duty of fair representation breach was secondary

to the independent enforceability of the Petitioners’

settlement agreements.

Federal labor law has never permitted an individual

employee right to be undermined or written away by the

parties on the basis of what could be considered “ratio-

nal” behavior. Rather, federal law has demanded that

each worker be treated according to the “chosen” terms

of the applicable CBA. General Drivers, supra. That

was not done here.

It cannot be within the Union’s reasonable range of

conduct to treat members of the bargaining unit fairly, by

seeking to supersede and revoke meritorious grievance

(...continued)

cases.” 594 F.2d at 990.

. 2

settlements previously achieved from the employer, by a

means outside the grievance process. That act is itself

evidence of the Union’s bad faith in the treatment of its

obligations under Section 301 because “the duty of fair

representation protects the individual employee from

arbitrary abuses of the settlement device by providing him

with recourse against both employer (in a § 301 suit) and

union....” Vaca v. Sipes, 386 U.S. at 193.

The result achieved by the court of appeals reverses

this Court’s decision in Lion Dry Goods, supra at 28, that

settlement agreements are encouraged to maintain labor

peace. Therefore, “[F]ederal courts should enforce these

agreements on behalf of or against labor organiza-

tions***industrial peace can be best obtained only in that

way,” (quoting Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 455 ).

Consequently, a grave error of fact was presented and

ignored. Contrary to the understanding of the Fourth

Circuit, the grievance arbitration procedure of the CBA

did not result in any ruling on the Plaintiffs’ status.

Rather, it was only through a non-CBA process that

Plaintiffs were stripped of their rights.’

’As set forth infra, the undisputed testimony is that a grievance

settlement cannot be overturned except by the invocation of the

contract grievance procedure as testified by the National Union

President. App. 492, 300, 416 I1.12-15, 362 I1.1-9, 396 11.10-15,

351 11.6-9.

“ms

In this situation, the Fourth Circuit’s finding that the

parties to the CBA have always interpreted “nonbargain-

ing unit” to mean “supervisory employees” resolved this

genuine issue of fact, rather than leaving the contradictory

testimonial evidence to the arbitrator. That holding

contradicted uniform federal caselaw and the Fourth

Circuit’s own decisions in Zimmerman v. Faculty Assn. of

the French Int’l School, 830 F.2d 1316, 1319 (4th Cir.

1987), that disputes over the meaning of a contract term

are not entitled to summary judgment, and Ross Vv.

Communications Satellite Corp., 759 F.2d 355, 364-65

(4th Cir. 1985), since the dispute here rests upon what is

the correct interpretation of a CBA and the Respondents

rely upon arguments, that are not contained in the

agreement.

These distinctions are immense for purposes of

sustaining a summary judgment finding of the district

court because a genuine issue of fact over the proper

process to reverse a settlement agreement existed on the

testimony of AVP Holmes, as well as the source of any

meaning for the term “nonbargaining unit” that tipped the

scales for the courts below.

Consequently, this case raises grave questions con-

cerning the viability of all grievance-arbitration machiner-

y, future employee reliance of the such machinery, and

the federal courts’ protection of employee rights from

noncontractual modification by their labor representative.

Only exercise of this Court's supervisory authority now

will ensure the consistent application of the Court’s prior

directives on the duty of fair representation and enforce-

ment of settlement agreements under Section 301.

CONCLUSION

For these reasons, Petitioners respectfully request that

a writ of certiorari issue to review the judgment of the

court of appeals.

Respectfully submitted,

MICHAEL E. AVAKIAN*

SMETANA & AVAKIAN

5211 Port Royal Road, Suite 103

Springfield, VA 22151

(703) 321-9180

_ J. RAYMOND SPARROW, JR.

SHUMATE, KRAFTSON

& SPARROW, P.C.

3900 University Drive, Suite 320

Fairfax, VA 22030

(703) 716-3100

*Counsel of Record for Petitioners

Dated: June 9, 2002

la

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES L. PRATT; MICHAEL T.

ANGELINI; ERIC J. BROWN,

Plaintiffs-Appellants,

and

ALESHIA V.M. HARRIS,

Plaintiff,

Vv. No. 00-2424

NATIONAL POSTAL MAILHANDLERS

UNION, LOCAL 305; UNITED STATES

POSTAL SERVICE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-99-1876-A)

Argued: October 29, 2001

Decided: January 10, 2002

Before WIDENER, NIEMEYER, and MOTZ, Circuit

Judges.

2a

Affirmed by unpublished opinion. Judge Niemeyer wrote

the opinion, in which Judge Widener and Judge Motz

joined. -

COUNSEL

ARGUED: Michael Ernest Avakian, SMETANA &

AVAKIAN, Springfield, Virginia, for Appellants.

Andrew A. Chakeres, Capital Metro & Mid Atlantic Area

Law Office, UNITED STATES POSTAL SERVICE,

Washington, D.C., for Appellee Postal Service; Thamer

Eugene Temple, II], MCSWEENEY & CRUMP, P.C.,

Richmond, Virginia, for Appellee Union. ON BRIEF:

J. Raymond Sparrow, SHUMATE, KRAFTSON &

- SPARROW, P.C., Fairfax, Virginia, for Appellants.

Helen F. Fahey, United States Attorney, Jeri Kaylene

Somers, Assistant United States Attorney, Alexandria,

Virginia; Thomas J. Marshall, Managing Counsel, Capital

Metro & Mid Atlantic Area Law Office, UNITED

STATES POSTAL SERVICE, Washington, D.C., for

Appellee Postal Service. G. William Norris, MCSWEE-

NEY & CRUMP, P.C., Richmond, Virginia, for Appel-

lee Union.

Unpublished opinions are not binding precedent in this

Circuit. See Local Rule 36(c).

Judge Niemeyer wrote the opinion, in which Judge

Widener and Judge Motz joined.

3a

OPINION

NIEMEYER, Circuit Judge:

James Pratt, Michael Angelini, and Eric Brown,

United States Postal Service employees, commenced this

action against the Postal Service and the National Postal

Mailhandlers Union (the “Union”), of which they were

members, to challenge a settlement agreement reached

between the Postal Service and the Union to adjust their

seniority. The district court granted summary judgment

to the Postal Service and the Union. We affirm.

I

Pratt, Angelini, and Brown, who were full-time

mailhandlers at the Postal Service’s Processing and

Distribution Center in Merrifield, Virginia, voluntarily

transferred to other positions within the Postal Service

during 1998 and 1999. Pratt became a custodian at the

Stafford, Virginia post office; Angelini became a mailha-

ndler in Tampa, Florida; and Brown became a letter

carrier in Springfield, Virginia. Before they transferred,

they discussed the risks and consequences of leaving their

positions in Merrifield with Union leadership. In each

case, the individual was advised that, even if he returned

within one year, he might lose his seniority, but that he

could file a grievance with the Postal Service to seek to

regain his seniority.

Within a year of leaving their positions at Merrifield,

Pratt, Angelini, and Brown returned, at various times, to

the Merrifield facility. Upon their return, each was

converted from full-time status to “part-time flexible”

4a

Status and placed on the bottom of the seniority list at

Merrifield. All three filed grievances with the Postal

Service, seeking to be restored to full-time status and to

the seniority positions that they had held before they

transferred from Merrifield. The Postal Service and the

Union settled each of the grievances by restoring the

employee to full-time status and by restoring his seniority

to the position he had held before he transferred from

Merrifield.

Other part-time flexible and full-time employees who

were bypassed by these grievance settlements reached by

the Postal Service and the Union, filed a class action

grievance against the Postal Service through their shop

steward, Dwight Burnside. The Burnside grievance

asserted that the settlement agreements between the Postal

Service and the Union with respect to Pratt, Angelini,

and Brown violated the terms of the applicable collective

bargaining agreement between the Postal Service and the

Union. Upon reviewing the matter Closer, the Postal

Service and the Union agreed that they had made a

mistake in the manner in which they settled Pratt, Angel-

ini, and Brown’s grievances and that those settlements

misapplied the applicable provisions of the collective

bargaining agreement. Accordingly, the Postal Service

and the Union settled the Burnside grievance by agreeing

to vacate the earlier settlement agreements involving

Pratt, Angelini, and Brown, thereby returning those

three employees to parttime flexible status with entry-

level seniority, and to withdraw the Burnside grievance.

Thereafter, Pratt, Angelini, and Brown commenced

this action against both the Postal Service and the Union,

alleging that the Postal Service breached its collective

5a

bargaining agreement with the Union and that the Union,

by agreeing to the Burnside settlement, breached its duty

of fair representation. They alleged that the Union's

agreement furthered the political ambitions of officers and

undermined the provisions of the collective bargaining

agreement. The plaintiffs also alleged intentional inflic-

tion of emotional distress.

On the motion of the Postal Service and the Union for

summary judgment, the district court concluded that the

Postal Service and the Union had acted properly in

voiding the grievance settlements reached between them

with respect to Pratt, Angelini, and Brown. In reaching

this conclusion, the district court found that the Postal

Service and the Union had interpreted the collective

bargaining agreement correctly. The district court also

concluded that the Union, by agreeing to void the Pratt,

Angelini, and Brown grievance settlements, did not

violate its duty of fair representation to Union members.

Finally, the district court dismissed the employees’ claim

for intentional infliction of emotional distress because the

employees had failed to produce evidence that the defen-

dants’ conduct was “outrageous and intolerable.”

From the district court’s judgment, Pratt, Angelini,

and Brown filed this appeal.

II

Pratt, Angelini, and Brown commenced this typical

hybrid action against the Postal Service and the Union,

alleging that the Postal Service breached the collective

bargaining agreement, in violation of 39 U.S.C. § 1208

(the Postal Service’s analog for § 301 of the Labor

6a

Management Relations Act of 1947, 29 U.S.C. § 185),

and that the Union breached its duty of fair representa-

tion. See DelCostello v. Int’! Bhd. of Teamsters, 462

U.S. 151, 164-65, 76 L. Ed. 2d 476, 103 S. Ct. 2281

(1983) (describing the interactions of claims in a “hybrid

§ 301/fair representation claim”). To prevail against

either party in a hybrid suit, the plaintiffs must prevail

against both parties. They must demonstrate both that the

revocation of their seniority was contrary to the collective

bargaining agreement and that the Union breached its duty

of fair representation when it agreed with the Postal

Service’s interpretation of the collective bargaining

agreement. See Hines v. Anchor Motor Freight, Inc. , 424

U.S. 554, 570-71, 47 L. Ed. 2d 231, 96 S. Ct. 1048

(1976); Adcox v. Teledyne, Inc., 21 F.3d 1381, 1386 (6th

Cir. 1994).

After reviewing the record and considering the

appellants’ arguments, we find that the appellants cannot

demonstrate that the Union breached its duty of fair

representation. Both parties to the collective bargaining

agreement, the Postal Service and the Union, agreed to

what they believed was the proper application of the

collective bargaining agreement in establishing and

preserving seniority rights. Their settlement of the Burn-

side grievance, which voided their earlier settlements with

respect to Pratt, Angelini, and Brown, reflected their

effort to correct an error that they agreed they had made

in settling the earlier grievances. When reviewed against

the language of the collective bargaining agreement, we

conclude that the positions of the Postal Service and the

Union were rational, indeed perhaps indicated, although

we need not render any ultimate opinion on the “correct”

interpretation of the collective bargaining agreement. See

7a

Air Line Pilots Ass’n Int’l v. O'Neill, 499 U.S. 65, 78,

113 L. Ed. 2d 51, 111 S. Ct. 1127 (1991) (stating that a

union does not breach its duty of fair representation

unless it acts “so far outside a wide range of reasonable-

ness that it is wholly irrational or arbitrary” (internal

quotation marks and citation omitted)).

An underlying principle of the collective bargaining

agreement, described in Article 12.2D2, is that seniority

“is computed from the date of appointment in the craft

and continues to accrue so long as service in the craft . .

. is uninterrupted.” If service is interrupted by voluntary

transfer from one postal installation to another, or from

one craft to another, Article 12.2F1 requires the employ-

ees to begin a new period of seniority. Following the

same general principle, Article 12.2G3 of the collective

bargaining agreement requires employees changing from

another craft to a mailhandler craft to begin a new period

of seniority as well.

There is no doubt that Pratt, Angelini, and Brown

interrupted their service in their craft and installation

when they transferred to other positions within the Postal

Service. Accordingly, Articles 12.2F1 and 12.2G3 of the

collective bargaining agreement support the conclusion

that these employees were required to begin a new period

of seniority when they returned to the mailhandler craft

at Merrifield.

The wrinkle, according to Pratt, Angelini, and

Brown, is a limited exception to the seniority rule,

created by Article 12.2G7b, to preserve seniority for

employees who transfer to a position outside of the

“bargaining unit” and return within one year. Pratt,

8a

Angelini, and Brown argue that “bargaining unit” as used

in 12.2G7b refers to mailhandlers in Merrifield. The

Postal Service and the Union, however, agreed that the

“bargaining unit” referred to all nonsupervisory positions.

That interpretation was how the “bargaining unit” was

always understood by the parties to the collective bargain-

ing agreement.

The Postal Service and the Union originally negoti-

ated the terms of Article 12.2G7 as part of the 1973

omnibus collective bargaining agreement. At that time,

a major theme in the negotiations was to encourage

employees to seek management positions. To that end,

the parties agreed to make an employee’s decision to

pursue a management position less risky. Employees

leaving the rank and file for management positions were

therefore given a one-year grace period during which they

could return to their old positions without losing senior-

ity. Since 1973, negotiators have never suggested that

Article 12.2G7 gives employees who leave the mailhandl-

er craft for nonmanagement positions a grace period

during which they could return without losing seniority.

To the contrary, the Union negotiators have continued to

recognize that Article 12.2G7 is an incentive provision to

encourage employees to try their hand in management.

They therefore have always understood positions outside

the “bargaining unit” to refer to managerial and supervi-

sory positions.

In addition, the interpretation given to the collective

bargaining agreement by the Postal Service and the Union

is consistent with the structure of the collective bargaining

agreement. Article 12.2G3 requires an employee chang-

ing from another craft to mailhandler to begin a new

9a

period of seniority. There is no exception for a mail-

handler who returns to the mailhandler craft after leaving

the craft for less than one year. This general rule -- that

employees who leave a craft or installation lose their

seniority -- supports the interpretation of “bargaining

unit” that makes the Article 12.2G7 exception more

narrow than a universal grace period for mailhandlers to

experiment with new positions of all types.

Accordingly, we conclude that the Postal Service and

the Union’s interpretation clearly falls within a range of

reasonableness. And because of that conclusion, we find

no breach by the Union of its duty of fair representation.

In view of the legal principle that plaintiffs must establish

liability of both the Postal Service and the Union to

succeed on a hybrid action in court, we need not reach

the issue of whether the Postal Service’s revocation of

Pratt, Angelini, and Brown’s restored seniority was

actually “correct” under the collective bargaining agree-

ment. See Hines, 424 U.S. at 570-71.'

Having concluded that the position taken by the Postal

Service and the Union was rational, we also conclude that

Pratt, Angelini, and Brown’s claims for intentional

infliction of emotional distress were properly dismissed.

Pratt, Angelini, and Brown have not produced any

‘Pratt, Angelini and Brown also argue that the Union’s

action was discriminatorily biased. They allege that two Union

stewards were among the mailhandlers whose status was

improved with the Burnside settlement. They also allege an

animus toward Pratt. Because these appellants have not

produced evidence connecting either of these two consider-

ations to the Union’s decision, however, both claims must fail.

10a

evidence to demonstrate that the defendants’ conduct in

reaching the Burnside settlement was “outrageous and

intolerable.” See Russo v. White, 241 Va. 23, 400

S.E.2d 160, 162 (Va. 1991) (requiring clear and convinc-

ing evidence that the wrongdoer’s conduct was intentional

or reckless, that the conduct was “outrageous and intoler-

able,” and that the conduct caused severe emotional

distress).

Finally, Pratt, Angelini, and Brown contend that the

district court abused its discretion when it taxed costs

against them pursuant to Federal Rule of Civil Procedure

54(d) and Local Rule 54(D) of the Eastern District of

Virginia. They assert that the taxation was improper

because the Bill of Costs was not filed within the time

prescribed by Local Rule. However, because Pratt,

Angelini, and Brown failed to raise this issue in the

district court, we do not consider it here. See Grossman

v. Comm ’r of Internal Revenue, 182 F.3d 275, 280-81

(4th Cir. 1999) (citing Muth v. United States, 1 F.3d 246

(4th Cir. 1993)).

For the foregoing reasons, the judgment of the district

court 1s

AFFIRMED.

lla

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

March 11, 2002

No. 00-2424

CA-99-1876-A

JAMES L. PRATT; MICHAFL T.

ANGELINI; ERIC J. BROWN

Plaintiffs - Appellants

and

ALESHIA V.M. HARRIS

Plaintiff

NATIONAL POSTAL MAILHANDLERS UNION,

LOCAL 305; UNITED STATES POSTAL SERVICE

On Petition for Rehearing and Rehearing En Banc

The appellants’ petition for rehearing and rehearing

en banc was submitted to this Court. As no member of

this Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

12a

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court,

/s/ Patricia S. Connor

Clerk

13a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JAMES L. PRATT, et al., )

Plaintiffs,

V. ) Civil Action No, 99-1876-A

NATIONAL POSTAL

MAIL HANDLERS,

LOCAL 305 AND

UNITED STATES

POSTAL SERVICE,

Nee Nee ee”

Defendants.

MEMORANDUM OPINION

This matter comes before the Court on Defendants’

Motions for Summary Judgment and to strike Plaintiffs’

Jury Demand.

Thin action is brought pursuant to § 1208 of the

Postal Reorganization Act, 39 U.S.C. § 1208, Section

301 of the Labor Management Relations Act, 29 U.S.C.

§ 185, and under the common law of Virginia. The four

Plaintiffs, James Pratt, Michael Angelini, Aleshia Harris

and Eric Brown, (“Plaintiffs”) allege three counts: Breach

of the Collective Bargaining Agreement (Count I); Breach

of the Duty of Fair Representation (Count II); and a tort

claim for Intentional Infliction of Emotional Distress

(Count II]). Court II was dismissed as to Defendant

l4a

United States Postal Service (“Postal Service”) by March

24, 2000 Order of this Court. Plaintiffs seek injunctive

relief and unspecified damages arising primarily from

their tort claim. Both Defendants now move for Sum-

mary Judgment and to Strike the Jury Demand made by

Plaintiffs. ;

This action arises out of the job transfer of the four

Plaintiffs. Each began working as a mail handler in the

Postal Service’s Merrifield, Virginia installation. Each

voluntarily transferred from their assignments in

Merrifield. Except for Mr. Angelini who remained a

mail handler but transferred to Tampa, Florida, each also

transferred out of the Mail Handler craft and into other

postal crafts. Each plaintiff later transferred back to

Merrifield to the mail handler craft within one year.

Initially, each Plaintiff ro°urned to Merrifield as a

“part-time flexible” employee (“PTF”) beginning a new

period of seniority. This was mandated by Article 12.2,

part Fl of the collective bargaining agreement between the

Mail Handlers Union and the Postal Service. Part Fl

provides that when an employee voluntarily transfers from

one postal installation to another, or from one craft to

another, an employee must be assigned as a PTF begin-

ning a new period of seniority. Plaintiff Angelini trans-

ferred from the postal installation at Merrifield to the

postal installation in Tampa. He then transferred back to

Merrifield and was placed as a PTF, as set forth in part

Fl. For Plaintiffs Pratt, Brown and Harris, who were

returning from other crafts, the PTF assignment was in

accord with Article 12.2, part G3, which states, “When

an employee changes from another craft to Mail Handler,

the employee will begin a new period of seniority.”

:

:

15a

Plaintiffs brought suit claiming that they were entitled

to return as “full-time regular” employees with their

former seniority intact. Subparts bl and b2 of Article

12.2 G7b provide that “[aJn employee who left the craft

and/or installation...will begin a new period of seniority

unless the employee returns within one year, “in which

case the employee will retain the seniority he or she had

at the time they left.” Plaintiffs believed this provision

applied to them because they each returned within one

year. However, under G7b, the one year window for

craft employees to return and regain their seniority

applies only when the employee returns from a nonbar-

gaining unit position within the Postal Service. “Nonbar-

gaining unit position” has always been construed by the

Mail Handlers Union and the Postal Service to mean

supervisory and management positions. None of the

plaintiffs returned from a supervisory or management

position.

The plaintiffs filed grievances.when placed as PTF’s

upon their return to Merrifield. The result was that the

plaintiffs’ full time status and seniority was restored.

However, this action was in violation of parts Fl and G7b

of Article 12.2 in that it bypassed many other PTF

employees awaiting full time status. The Union took

corrective action to rectify this mistake and a “Memoran-

dum of Agreement” was issued that voided the plaintiffs’

prior grievance settlements and readjusted the plaintiffs’

seniority and status so as to be “in accordance with the

terms of the National Agreement.” Plaintiffs then reverted

to PTF status with new seniority periods that commenced

from their return date to Merrifield.

l6a

Summary Judgment is appropriate where there is no

genuine issue as to any material fact. See FED R. CIV P.

56(C). Once a motion for summary judgment is properly

made and supported, the opposing party has the burden of

showing that a genuine dispute exists. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986). A material fact in dispute appears when

its existence or non-existence could lead a jury to differ-

ent outcomes. See Anderson v. Liberty Lobby, Inc., 475

U.S. 242, 243(1986). A genuine issue exists when there

is sufficient evidence on which a reasonable jury could

return a verdict in favor of the nonmoving party. See id.

Mere speculation by the non-moving party “cannot create

a genuine issue of material fact.” Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985); See_also Ash v. United

Parcel Serv., Inc., 800 F.2d 409, 411-12(4th Cir. 1986).

Summary judgment is appropriate when, after discovery,

a party has failed to make a “showing sufficient to

establish the existence of an element essential to that

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

of proof at trial” Celotex Corp. v. Catrett, 477 US. 317,

322 (1986). When a motion for summary judgment is

made, the evidence presented must always be taken in the

light most favorable to the non-moving party. See Smith

v. Virginia Commonwealth Univ. , 84 F.3d 672, 675 (4th

Cir. 1996)(en banc).

Plaintiffs’ interpretation of G7b puts the provision at

odds with part G3 rendering it meaningless. Under

contract law, an interpretation that gives meaning to the

entire contract is preferred. See Island Creek Coal Co.

v. Lake Shores Inc. , 832 F.2d 274, 277 (4th Cir. 1987).

Plaintiffs assert that their grievance settlements were final

and binding, even if they were contrary to the bargaining

17a

agreement. However, erroneous settlements need not be

enforced.

Plaintiffs were not entitled to have their seniority

restored so Local 305 and the Postal Service acted in the

best interest of those who it represents by voiding the

plaintiffs’ grievance settlement. As such, Local 305 and

the Postal Service did nor breach a contract or fail in its

fair duty of representation.

Collective bargaining agreements are not ordinary

contracts. Transportation Communication Employee

Union, 385 U.S. 157 (1966). These agreements are

_ handled through arbitration and grievance policies. The

Postal Service’s grievance process has established a line

of arbitration decisions that hold that settlement agree-

ments executed in violation of the terms of a collective

bargaining agreement are void and unenforceable. As the

plaintiffs’ grievance settlements were inconsistent with the

national agreement, they were voided.

Local 305 and the Postal Service never breached their

duties of fair representation. As the exclusive bargaining

representative of any group of employees, a union has a

duty of fair representation to those employees. See Ford

Motor Co. v. Huffman, 345 U.S. 330 (1953); Bowen v.

United States Postal Serv., 459 U 5. 212, 218 (1983).

This duty is- breached only if the union’s conduct is

“arbitrary, discriminatory or in bad faith.” Vaca v Sipes,

386 U S. 171 (1967); See also Griffin v. International

Union UAW, 469 F.3d 181 (4th Cir. 1972). To fail

under this standard, a union’s actions must be “so far

outside a wide range of reasonableness as to be irratio-

nal.” Air Line Pilots Assn. v. O’Neill, 499 U 5. 65, 67

18a

(1991); see alsoBenson v. Communication Workers of

Amer., 866 F. Supp. 910,914 (E.D.Va. 1994), aff'd 81

F.3d 148 (4th Cir. 1996), cert. denied, 519 U.S. 820

(1996).

Neither Local 305 nor the Postal Service acted in a

manner that was arbitrary. A union has a duty to repre-

sent the collective interests of all its members. JBEW v.

Foust, 442 U.S. 42, 47 (1979). In this case, Local 305

was protecting the interests of all its members by reestabl-

ishing proper seniority status to the plaintiffs. Other

members of the union would have lost their seniority

rights had the invalid grievance settlements been en-

forced. Local 305 was correcting a mistake. Local 305’s

actions were, therefore, not arbitrary, but responsible and

rational to protect the interests of the group it represents.

Plaintiffs fail to establish that Local 305 or the Postal

Service acted in bad faith or with discriminatory intent.

A “bad faith claim may be established only by a showing

of fraud or deceitful or dishonest action.” Brown v

International Brotherhood of Teamsters, 1997 U.S. Dist.

LEXIS 21831 (E.D. Va. 1997). Plaintiffs speculate that

Local 305 rescinded the settlement agreements in order to

seek revenge against Mr. Pratt for his union activities.

However, they offer nothing beyond speculation in the

way of proof. The Postal Service employee who made

the conclusion that these four employees were not entitled

to have their seniority restored did not know the plain-

tiffs, their background or union activities. She could not

have been discriminating against the plaintiffs because she

knew nothing about them. The defendants ware trying to

19a

rectify a mistake in accordance with their national agre

ement and established policies. There is no evidence of

fraud or deceit by the defendants.

Plaintiffs’ claim for Intentional Infliction of emotional

harm against Local 305 also fails. Emotional distress

claims like this one are “not favored” under Virginia law.

Ruth v. Fletcher, 237 Va. 366, 373, 377 S.E.2d 412, 415

(1989). Plaintiff must produce evidence showing that the

conduct is outrageous and intolerable. Russo v. White,

241 Va. 23, 26, 400 S.E.2d 161-162 (1991). Mere

conclusory allegations are insufficient. Jd. at 24.

Plaintiffs have not provided evidence to show that

Defendants’ conduct was “outrageous or intolerable.”

They allege that Plaintiffs felt embarrassed because co-

workers called them “PTF’s” and that they were ad-

versely affected by losing their seniority status. The

defendants were attempting to enforce its national policy

with no bad faith intent. This conduct is neither outra-

geous or intolerable. No action made by the defendants

would meet the high standard of extreme behavior to

establish liability under Virginia law for an emotional

distress claim.

As the Court finds that Summary Judgment should be

granted in this case, the Motion to Strike Plaintiffs’ Jury

Demand is moot.

An appropriate Order shall issue.

/s/ Claude M. Hilton

CHIEF UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

August 24, 2000

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JAMES L. PRATT, et al., )

Plaintiffs, )

)

Vv. )Civil Action No, 99-1876-A

)

NATIONAL POSTAL )

MAIL HANDLERS, )

LOCAL 305 AND )

)

)

)

)

UNITED STATES

POSTAL SERVICE,

Defendants.

This matter comes before the Court on Plaintiff's

Motion for Reconsideration in which it asks this Court to

amend or alter the Order of August 24, 2000, granting

summary judgment to the defendants and dismissing this

case. It appearing to the Court that Plaintiffs have raised

no new arguments and that this Court’s Order and

accompanying Memorandum Opinion were correct, it is

hereby

ORDERED that Plaintiff's Motion for Reconsidera

2la

tion is DENIED.

/s/ Claude M. Hilton

CHIEF UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

September 29, 2000

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JAMES L. PRATT, et al., )

Plaintiffs, )

)

Vv. ) Civil Action No, 99-1876-A

NATIONAL POSTAL

MAIL HANDLERS,

LOCAL 305 AND

UNITED STATES

POSTAL SERVICE,

a i i a ee ee

Defendants.

ORDER

This matter comes before the Court on Defendants’

Motions for Summary Judgement and Defendants’ Motion

to Strike Plaintiffs’ Jury Demand. For reasons stated in

accompanying Memorandum Opinion, it is hereby

ORDERED the Defendants’ Motions for Summary

Judgment are GRANTED and that this case is DIS-

MISSED.

/s/ Claude M. Hilton

CHIEF UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

August 24, 2000

rE

ASAE PBL IG, HRM

Co ee

PITY TOM