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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 826

## Text

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

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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.

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»~ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0004%3A1. Public record. Not legal advice.