Petition for Writ of Certiorari — Humphress v. United Parcel Service, Inc.

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NO. OFFICE OF THe CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DONALD P. HUMPHRESS Petitioner

versus

UNITED PARCEL SERVICE, INC., and

GENERAL DRIVERS, WAREHOUSEMEN AND

HELPERS, LOCAL UNION 839, Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNTIED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

THEODORE H. LAVIT

Counsel of Record for Petitioner

One Court Square

P.O. Box 676

Lebanon, Kentucky 40003

(502) 692-4471

Counsel of Record for Petitioner

QUESTIONS PRESENTED

I. Whether in a hybrid § 301 suit, evidence that union

told an employer to fire an employee, political animosity existed

between the union and the individual, union lied to individual.

union caused an interunion grievance to be filed against individual

and threatened loss of same, union ignored repeated requests to

reinstate grievance, individual was not told of state panel meeting or

result, union did absolutely no investigation or anything to aid

individual's grievance, union simply went through the motions, etc..,

was sufficient evidence that union violated its duty of fair

representation.

2. Whether in a hybrid § 301 suit, the union is entitled

to deference excepting "arbitrarily, discriminatory, or in bad faith"

conduct, when a union processes a grievance for an individual

whose rights are synonymous with the union/group, and if deference

exists, the limits of same.

x Whether an individual has exhausted his

contractual remedies in a hybrid § 301 suit when a grievance is

denied and dismissed at a state panel level, but the union tells him to

file a new grievance over different issues.

4. Whether filing a new grievance over new issues

means that further efforts on the original grievance and original

issues therein are no longer futile for purposes of a hybrid § 301

Suit.

5: Whether a state-law claim is preempted by § 301

merely because a collective bargaining agreement copies and

incorporates rights under statutes and regulations forming the basis

of the state law claim and provisions of the collective bargaining

agreement provide no defense to the state law claim.

;

LIST OF PARTIES

The caption of the case in this Court contains the names of

all parties to the proceedings in the United States Court of Appeals

for the Sixth Circuit.

TABLE OF CONTENTS

PAGE

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REASONS FOR GRANTING THE WRIT...........c:c:ccccesesesceseseseees 15

I. CERTIORARI SHOULD BE GRANTED

TO RESOLVE CONFLICTS AMONG

LOWER COURTS IN THE

INTERPRETATION OF THE BURDEN

OF PROOF FOR A HYBRID § 301

oO” SIPS Os aes ERE Ys OE eNO De ae 15

II. CERTIORARI SHOULD BE GRANTED

TO ADDRESS IMPORTANT LEGAL

ISSUES INVOLVING EXHAUSTION OF

CONTRACTUAL REMEDIES FOR A

ee ROR Se PE © MII vce cassrcsscsnccncocnigeesesonvcsensns 19

III. CERTIORARI SHOULD BE GRANTED

TO ADDRESS IMPORTANT LEGAL

ISSUES INVOLVING FUTILITY OF

EXHAUSTION OF CONTRACTUAL

REMEDIES FOR A HYBRID § 301

CRP Aaeiiisrehiniiehcsachincshsaiieaiaicamnaicdbctas teal tsech ads 20

IV. CERTIORARI SHOULD BE GRANTED

TO ADDRESS IMPORTANT LEGAL

ISSUES INVOLVING § 301 '

PREEMPTION OF STATE LAW |

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APPENDIX:

Order, United States Court of

Appeals for the Sixth Circuit,

Seams PRIN BO SI i es A-| - A-7

Judgment Order and Memorandum Opinion,

United States District Court for the

Western District of Kentucky,

SIRE AIOE 0 BPUET dischasces sid easevaclovsananbosstals nbeescisieies cxes A-8 - A-27

TABLE OF AUTHORITIES

CASES PAGES

Boldine v. International Union, United Auto..

581 F.2d 145 hs Le My. 11 : DANCES US ernseneae eos oir?

Grzvb v. Evans.

700 S.W.2d 399 JUS AEs.) MEP ENAR UIE OME Ee ENS Che os

Harrison v. United Transportation Union.

530 F.2d 588 (4th Cir. 1975), cert. denied, 425 U.S. 958 (1976)...

Hines v. Chauffeurs. Teamsters. etc..

506 F.2d 1153, rvd.. in part on other gnds., 424 U.S. 554 (1976)...

International Brotherhood of Electrical Workers v. Foust,

442 U.S. 42; 60 L.Ed.2d 698 CRE e i sinivlats alidchiseect Rk oe

Lingle v. Norge Division of Magic Chef. Inc..

486 U.S. 399, 410. 100 L.Ed.2d 410, 42] Si 3 GaGa eR ons

Milstead v. Internationa! Brotherhood of Teamsters. Local 957,

580 F.2d 232 (6th Cir. 1978), cert denied, 454 U.S. 896 (1979)...

Smith v. Evening News Ass'n,

371 U.S. 195, 200, 83 S.Ct. 267, 270. 9 L.Ed.2d 246 (1962)..........

Smith v. Hussmann Refrigerator Co..

619 F.2d 1229 (8th Cir. ag AEE aR oa TEN ey MECH oe eS

Soto Segarra v. Sea-Land Service. Inc..

581 F.2d 29] (1st Cir. EP povidawiesbivernsbds Ge dees udder

St. Clair v. International Brotherhood of Teamsters,

OZ F2d TG Gl AGG Ei ccviectviorsctensesics SET Rie ae eae 1 ORR 17

Thomas v. United Parcel Service, Inc..

EE ee ee ee CFO SOE, EOEDP . ccs vxncesuiuudauveluans steicanactoakiveniawedkwaccsabans 15

Vaca v. Sipes.

Se OS a PET 2 otk ee Re, | TOES B osnacsstindcracivipuscacnanmalocnmec 3, 32

Wallace v. International Organization of Masters. Mates & Pilots,

SAT FE Sepp. USS (G.DN.Y __)crvsccseersossrsonsnssonnsvntbsorscanntnsisonassnsaen 17

STATUTES AND REGULATIONS

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Pn oS, © RRR RM NEE LMER ACSI CRED”

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DONALD P. HUMPHRESS Petitioner

versus

UNITED PARCEL SERVICE, INC.. and

GENERAL DRIVERS, WAREHOUSEMEN AND

HELPERS, LOCAL UNION 89. Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNTIED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Donald P. Humphress, respectfully prays

that a Writ of Certiorari issue to review the Opinion and order of the

United States Court of Appeals for the Sixth Circuit. entered

November 30, 1998.

OPINIONS BELOW

rhe opinion of the United States Court of Appeals for the

Sixth Circuit, whose judgment is herein sought to be reviewed, was

not recommended for full-text publication is reprinted in the

appendix hereto, pp. A-l-A-7. The prior opinion of the United

States District Court for the Western District of Kentucky in this

case, entered October 7, 1997, also was not recommended for full-

text publication but is reprinted in the appendix hereto, pp. A-8 - A-

JURISDICTION

An order of the United States Court of Appeals for the Sixth

Circuit was entered on November 30, 1998 affirming the order of

the United States District Court for the Western District of

Kentucky which granted summary judgment in favor of the

respondents. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1).

STATUTES INVOLVED

The statute involved in this case is § 301 of the Labor

Management Relations Act ("LMRA") codified at 29 U.S.C. § 185

(a) which provides:

§ 185. Suits by and against labor organizations

(a) Venue, amouni and citizenship. Suits for

violation of contracts between an employer and a

labor organization representing employees in an

industry affecting commerce as defined in this Act,

or between any such labor organizations, may be

brought in any district court of the United States

having jurisdiction of the parties, without respect to

the amount in controversy or without regard to

citizenship of the parties.

a greene ne

STATEMENT OF THE CASE

Petitioner, Donald P. Humphress has been an emplovee of

respondent United Parcel Service, Inc. ("UPS"), for almost 30 years.

He is now and has been a package car driver in Campbellsville,

Kentucky.

Respondent, General Drivers, Warehouser.en and Helpers,

Local Union 89 ("Local 89"), is affiliated with, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen. and Helpers

of America, ("Teamsters"), and has been the recognized collective

bargaining representative since Humphress was employed.

Humphress served as the local union steward for Local 89 from

1985 to 1992.

On February 28, 1994, UPS required Humphress to operate

vehicle no. 40838 which had numerous safety and non-safety

defects. The vehicle was the subject of a recent accident. For over a

month, the vehicle had previously been written up as unsafe by

other drivers and should have been placed out of service "red-

tagged" until repairs were made under federal/state law and the

collective bargaining agreement.! Despite same, UPS failed to

correct the unsafe conditions prior to Humphress' Operation.

After driving the vehicle that day, Humphress completed a

Driver Vehicle inspection Report ("DVIR") as required by the

contract and federal law. In the DVIR, Humphress reported so many

safety and nonsafety defects that he had to attach separate pages.

UPS's mechanic agent, Steve Hughes’ response, also required by

contract and law, stated, "I don't have time for this We ke

Article 18 of the Masters Agreement is entitled, "Safety and

Health, Equipment, Accidents and Reports" and provides in

| Two applicable collective bargaining agreements existed

between UPS and Local 89: (1) the National Master United Parcel

Service Agreement _ beginning August 1, 1993 ("Master

Agreement"), and (2) The Central Conference of Teamsters

Supplemental Agreement beginning August 1, 1993("Conference

Agreement").

pertinent part: that UPS will not require employees to operate

vehicles that are not in a safe operating condition as provided by

state or federal law; that employees are to report all known defects

of vehicles and equipment; that UPS is not to use, and employees

are not required to operate vehicles, or equipment that has been

reported by another employee as being unsafe or written up for

repairs; that said vehicles are to be placed out of service until

repaired. The Article basically copies and incorporates federal

regulations regarding safe operation of commercial vehicles.

The following defects reported by Humphress on vehicle

No. 40838 were unsafe under the contract? and federal law: the

driver's door was strapped shut and would not operate. In fact, the

door had been strapped closed with a sign saying it could not be

opened because it had been wrecked. Other defects included that

brakes were locking up: one had to put his hands through the

steering wheel to operate the turn signal; the rear door and floor let

fumes in; instrument gauges were not properly working; suspension

and springs not proper; sharp pieces of metal sticking off back door;

mirrors would not adjust, etc..3

Vehicle No. 40838 was in clear violation of several

provisions in 49 C.F.R. § 393, and thus "unsafe" as defined by

2 Section | of Article 18 defines “unsafe conditions as set out

in any state or federal rules, regulations, standards or orders . . ."

3 Federal Highway Administration regulation 49 CFR §

393.203 specifically states, "no door shall be wired shut or

otherwise secured in the closed position so that it cannot be readily

opened.” Vehicles are to have brakes adequate to control the

movement of, and to stop and hold a vehicle. 49 CFR § 393.40.

Exhaust systems must expel fumes away from driver, fuel supply,

etc. 49 CFR § 393.83. Pursuant to 49 CFR § 393.83, there must not

be holes in floors which allow exhaust fumes into the cab. Rearview

mirrors must be adjusted so as to allow the driver to easily see. 49

CFR § 393.80. Body bolts or brackets may not be loose, broken and

missing. 49 CFR § 393.203.

contract and incorporated law. A state DOT employee concurred

and stated any one of six defects Humphress identified on the DVIR

were sufficient to "red-tag" the vehicle.

Article 18, Sec. | of the Masters Agreement provides that

UPS shall not require drivers to use unsafe vehicles. Article 18,

Section | also provides that once a defect is reported, it was be "red-

tagged,” taken out of service and no employee required to Operate it

until repairs were made. Vehicle No. 40838 had been previously

Written up as unsafe, yet Humphress was required to drive it without

repairs.

Hughes, the full-time mechanic at the Campbellsville

center, became hostile and angry toward Humphress for reporting

the safety violations/defects on Vehicle No. 40838. Hughes

retaliated by intentionally and maliciously removing a modified

gearshift from Humphress' regular package car.

The gearshift which was removed from Humphress’

package car had been specially designed for him six to eight years

previously. At that time years prior, Humphress advised UPS of

medical problems and pain in his elbow. UPS approved Humphress'

request that the gearshift be modified by having it lengthened and

bent towards the seat to make shifting easier and less strainful. New

trucks coming from the factories had similar ergonomically shaped

gearshifts.

For six to eight years thereafter, Humphress used this same

modified gearshift. The pain and injury to his elbow gradually

ceased and never recurred. Humphress became accustomed to

operating the vehicle habitually as a usual and expected part of the

vehicle provided for him by UPS. Other drivers experienced similar

medical problems and made similar requests. By early 1994, over

half the vehicles at the Campbellsville center had modified shifters

similar to Humphress.

After Hughes removed Humphress' modified gearshift,

Humphress immediately again began experiencing pain and injury

to his elbow, which later spread to his shoulder.

After discovering the removal of the gearshift, Humphress

inquired of Hughes as to the reason for its removal. Hughes became

hostile and accosted Humphress for reporting Vehicle 40838 on the

DVIR. He told Humphress that he had no right to list the defects.

He said he did not need Humphress telling him what was wrong

with that truck because he already knew same.

On March 14, 1994, Humphress discussed the situation with

UPS center manager Vince Elliot and local union steward, Kenny

Nicholas. At this meeting, Elliot declared that no one should be

driving 40838 because it was unsafe. Elliot said he was going to put

a red-tag on it himself that day.4

On March 17, 1994, Humphress found plastic bags tied in a

knot in his package car. He also found grease on the back door

handle. On that same day, March 17, 1994, there was another

meeting, this one was between Humphress, Elliot, Hughes, UPS

managers Dave Clark and David Riney and Todd Adams, alternate

union steward, to discuss the situation.

At this meeting, center manager Elliot stated among other

things that: (1) that drivers feel afraid to write up defects on DVIR's

because things happen which points to Hughes; (2) Humphress was

not the only driver that has told him that he feels threatened when he

writes up a vehicle; (3) he's left at night and everything is fine, then

things are out of order when comes back in morning; (4) things

happen around the time when a driver writes something up; (5)

things like this happen and make drivers feel intimidated not to

write up the defects; and (6) Hughes got upset and so decided to

take out Humphress' gearshift.

At the meeting Hughes commented that: (1) he knew the

door not opening was a safety violation; (2) he gets a bad attitude

about how drivers writing up DVIR's; (3) he wouldn't do something

"mechanical" to a driver's car that would threaten his life; (4) he

made the decision to remove Humphress's gearshift because he was

angry; and (5) he removed the gearshift to make Humphress feel as

he did (angry, upset, mad, aggravated).

4 Vehicle 40838 was not red-tagged by Elliot and in fact it

was driven that very day. It continued to be driven for many more

weeks after additional write-ups in the DVIRS, without repairs

being made.

SO IIS MIT ey

After this meeting, UPS made no effort to secure for

Humphress a satisfactory gearshift to relieve the pain and injury in

his arm or address the safety issues as evidenced by continued use

of 40838 without repairs. As such, on April 3, 1994, Humphress

filed a grievance dated March 30, 1994.

After he filed his grievance, Humphress immediately began

experiencing, and continued experiencing forms of harassment.

Humphress began experiencing grease on his footwells below the

gas, brake and clutch pedals. The grease made his shoes slick and

footing difficult. He began finding grease on the metal truck steps.

He began experiencing grease on his doors making his hands greasy

when trying to open and close doors. Even where grease was

supposed to be, excessive amounts would be used. When

Humphress asked Hughes about same, Hughes said Humphiess was,

"a two shot grease man."

On May 26, 1994, the message "F-_- -K YOU" was written

on his windshield with a greased finger. On one occasion, globs of

lube grease (not used inside the truck) were placed on a package

inside the truck so that when Humphress got the package he got

grease on him. A picture of Humphress’ daughter had a mustache

drawn with ink on her face. Humphress' two wheel dolly was taken

out of his truck and hidden at the center behind a riding cleaner.

Instrument switches would be placed in the "on" position, so they

would come on when the truck was started. Plastic garbage bags

would be tied in knots, moved or stuck under the sun visor. Nail

clippers and clip boards would be hidden in the vehicle.

The above incidents occurred regularly and often and

almost on a everyday basis. The above harassment must be taken in

the context of Humphress’ history. In over 26 years of

employment, Humphress had never experienced any of these

incidents.

Coincidentally, other drivers were experiencing similar

occurrences to their package cars. Drivers were raising complaints

about someone urinating in their package cars. There was excessive

grease and grease on steps. Things were being moved around in the

package cars and personal items were being tampered with.

As Elliot stated at the March 17, 1994 meeting, these

drivers said that they suspected Hughes, because things began to

happen around the time they had a car break down, reported a defect

in the DVIR, or had confrontation with Hughes over getting repairs

done.

On May 2, 1994, a local hearing on Humphress' grievance

was conducted. At that time, Humphress conditionally withdrew the

grievance to allow UPS to attempt to remedy the situation.

UPS refused to reinstall his original modified gearshift, thus

ratifying the actions of Hughes. UPS stated that a UPS policy called

for a twenty-five (25) inch gearshift which could not be tampered

with in any way.>

In an attempt to settle the withdrawn grievance, UPS

installed some different gearshifts. However, all these gearshifts

were too short, being only 25 inches in length, requiring Humphress

to strain and lean out of his seat. They did not relieve the pain and

injury to Humphress's elbow, arm and shoulder.

Furthermore, after being installed, the short bent shifters

were gradually bent straight over time. This occurred on three

different occasions with three different gearshifts.

While all the above was going on, Humphress talked to

other drivers and learned of numerous continuing safety violations

by UPS and its failure to address the safety issues.

Because of the continuing harassment to himself and others,

the injury to his arm, and UPS's failure to address safety issues,

Humphress told Nicholas to reinstate his grievance from_ its

withdrawal and proceed with the grievance. On June 20, 1994, the

withdrawn grievance was reinstated.

Because the local hearing had already been held,

Humphress' reinstated grievance was sent to the state panel meeting

on July 15, 1994. Prior to this meeting, Local 89 representatives did

not call Humphress, familiarize themselves with facts or issues or

gather information or documents, despite serious issues of safety

involving all drivers. Humphress presented his own case. The

grievance was directly bumped up to the National Safety and Health

5 No such policy was found to exist.

ee an

SoS Sat Bere inten ager ee

Committee, bypassing the next normal Joint Area Council ("JAC")

level.

On August 31, 1994, Humphress telephoned Local 89 to

discuss his grievance and spoke with Local 89 business agent Larry

Wolfe. Wolfe stated that he had not heard anything. Humphress

thought Wolfe sounded a little strange.

Later that night after completing work that day, Humphress

received a certified letter from Local 89 informing him that Hughes

had filed an inter-Union grievance against him! Wolfe failed to

mention it earlier that day.

Local union Steward Nicholas knew nothing about the

inter-Union grievance. Strangely, Hughes could not specifically

recall who advised him how to file an interunion grievance against

Humphress. Local 89 had no records of any prior interunion

grievances for the five years prior to the one against Humphress. In

December, 1996, Wolfe's only knowledge of any interunion

grievances was the one against Humphress.

On or about September 9, 1994, Wolfe came to

Campbellsville and approached Humphress about the interunion

grievance. Wolfe told Humphress that he would lose the interunion

grievance. To avoid this foregone result, Wolfe advised Humphress

to withdrew his own grievance against UPS. Wolfe told Humphress

that if he withdrew his grievance, Wolfe would get Hughes to

withdraw the interunion grievance against Humphress, would secure

Humphress a gearshift to his satisfaction and would stop the

harassment.

When Wolfe told Humphress that he would lose the

interunion grievance, Humphress believed him. Previously on

March 7, 1991, Humphress had learned that Local 89

representatives had told then UPS center manager Tom Mouser to

fire Humphress and that Local 89 would make it stick and not

oppose same very hard.

At that time, Humphress was a supporter for Ron Carey

who was running for National Teamster President. Prior to March

7, 1991, Humphress had run on a slate of candidates against

incumbent Local 89 officers to serve as delegates to the National

Teamster convention for the Presidential elections. The election

results, in which Humphress’ slate of candidates lost, came in only a

week before March 7, 1991.

At that time, Humphress was a member of Teamsters for

Democratic Union ("TDU"), an organization critical of national

Teamsters and local affiliated unions. TDU was instrumental in

getting Carey elected. In fact, the slate of candidates on which

Humphress ran was a TDU slate for Carey. Local 89 did not

support Carey or TDU at the time but supported the incumbent.

Local 89 officers knew Humphress was a TDU supporter.

On March 8, 1991, days after the election, Humphress

asked Mouser about Local 89's statement. Mouser told Humphress

that he was not very well liked by Tom Trenaman or Gary Hug,

both Local 89 business agents. Mouser said they would deny

having said it if confronted.

When Wolfe approached Humphress, Humphress knew that

the same Local 89 representatives, Trenaman and Hugg, would be

acting as his "judges" in the interunion grievance. Interrogatory

answers of Local 89 confirmed same.

On September 8, 1994, Humphress conditionally withdraw

his grievance under the agreement that he would receive a suitable

gearshift, Hughes would withdraw his interunion grievance and the

harassment would stop. Humphress knew that because of the

conditional nature of his withdrawal, he could reinstate his

grievance if he did not receive a gearshift to his satisfaction. This

understanding was based upon the agreement with Wolfe, his prior

withdrawal and his knowledge as union steward.§

The conditional nature of the withdrawal and the agreement

is evidenced by the fact that both Wolfe and UPS attempted to put

other gearshifts in Humphress’ vehicle after the withdrawal, and

later promised to obtain him an automatic transmission vehicle.

No satisfactory gearshift, like the original, was ever placed

in Humphress’ package car. Humphress telephoned Wolfe on five

Or six occasions thereafter over two months about not receiving a

suitable gear shift. For three months, Humphress repeatedly told

6 Statements of other union stewards attest to this procedure.

6 REAR TERR UNRUH tm aye

Wolfe to reinstate his grievance to the National Safety Committee.

On no occasion did Wolfe advise Humphress that he could not

reinstate his grievance. Rather he asked Humphress to let him work

on it, and further advised he would obtain a suitable shifter.

Eventually, Wolfe told Humphress and later promised him that he

would receive an automatic transmission as agreed by UPS.

Humphress asked for written confirmation from UPS about same,

which never came.

Approximately seven (7) months passed after the second

conditional withdrawal and Humphress still had not received an

automatic transmission vehicle or a satisfactory gearshift.

Humphress instructed Nicholas to reinstate his grievance. Shortly

thereafter, Nicholas told Humphress that he had talked to Wolfe

who said that Humphress had to file a "reinstating grievance."

Humphress had not been required to file a "reinstating grievance"

when he reinstated the grievance from the first conditional

withdrawal.

On April 20, 1995, Humphress did as instructed and filed a

"reinstating grievance." Humphress learned from Trenaman and

Nicholas that his grievance was to be heard by the National Safety

Committee as agreed to by UPS.

Neither Trenaman nor Wolfe advised Humphress when his

grievance would be heard at the National Safety Committee.

Humphress asked Nicholas on several occasions when his grievance

would be heard by the National Safety Committee. Nicholas had

not been informed by Local 89 of the hearing date and time. Wolfe

failed to return calls, Nicholas said he would check on it.

On September 8, 1995, Humphress received from a UPS

manager a copy of the decision of a State Grievance Committee

held on August 24, 1995. To his dismay, Humphress learned that his

grievance was not heard by the National Safety Committee, but

instead had been heard by the state panel on August 24, 1995, and

that his grievance had been denied as settled and withdrawn!

Humphress could not believe it. Humphress never knew

that his grievance was to be heard at the state panel. This is the first

knowledge Humphress had of the hearing. Humphress asked

Nicholas if he knew about the state panel hearing. Nicholas, the

local union steward, who attends all state panels,” did not know

anything about the state panel meeting.

On October 17, 1995, Humphress spoke with Wolfe about

his grievance. Wolfe told Humphress that his grievance had been

"untimely" but could be refiled anytime. Wolfe advised him to

modify the grievance and use some additional contract language.

Humphress asked why he should be required to file another

grievance, when it was agreed that a condition for withdrawal of the

grievance was that he would receive a suitable gearshift and later an

automatic transmission vehicle. Wolfe agreed that this had been the

understanding. Nicholas recalled this discussion.

Humphress knew that once a grievance has been dismissed,

said dismissal is binding and the same issues cannot be raised again

in a subsequent grievance. Regardless, the reinstated grievance was

exhaustive and set forth everything, including the suggestions by

Wolfe.

Furthermore, after Humphress’ grievance raised the issue of

safety, Local 89 had a meeting with the drivers in Campbellsville at

Pizza Hut on November 19, 1994. Trenaman and Wolfe were

present. At this meeting other drivers raised safety and health

concerns about recapped tires, windshield wipers, defrost systems,

play in steering wheels, vehicles not being repaired, no brakes, seats

hurting backs, etc.. Local 89 did nothing to address these concerns

and has not conducted another meeting since.

On April 20, 1995, when Humphress filed the "reinstating"

grievance, two other grievances were also filed and signed by

twenty-two drivers and sponsored by driver Harlon Barnett. After

Humphress’ grievance, UPS replaced all gearshifts to a standard 25

inch straight gearshift to ratify Hughes' actions. When the gearshifts

were removed, other drivers began to experience pain and problems

like Humphress. As a result a group grievance was filed over same a

7 While union steward, Humphress had established a fund so that

local union stewards were paid to attend JAC and state level

hearings. Union stewards always attended such hearings involving

grievances from their center.

PES FH). DUE OTR

Rl hn aN mi hy tate DN Ha Ce EEO ERE et ROPE 9 EN aT to ee

year after Humphress’ gearshift was removed.

The second group grievance dealt with many of the health

and safety issues which were raised at the November 19, 1994

meeting with Local 89. For over a year and one-half, Local 89 had

done nothing so the group grievance was filed. The issues raised in

the group grievance also involved safety and health issues and

problems.

The local hearings on the Campbellsville group grievances

did not occur until September 1996. The group grievances were

bumped up to the state level in October 1996 and then the JAC level

in November 1996. These hearings did not occur until after

Humphress filed the present lawsuit against Local 89 and UPS, and

a year and a half after originally filed.

Wolfe never provided Barnett with DOT regulations though

requested. Local 89 made no effort to do any investigation, gather

information, obtain ergonomic studies, or do anything to help the

group grievances filed by a majority of the drivers in

Campbellsville.

On October 3, 1995, Humphress filed another safety

grievance after UPS instructed him, after refusal, to drive vehicle

No. 60156 which had numerous safety regulation violations.

The local hearing on said grievance did not occur until

seven months later on May 9, 1996, after Humphress filed the

present lawsuit. At the local hearing, Trenaman berated Humphress

in front of management asking, "Why are you the only one writing

up vehicles as unsafe? Local 89 later learned from another driver

that defects identified by Humphress were indeed true. Local 89

had utterly failed to prepare for this hearing. In fact, Humphress

argued against Local 89 representatives on contract issues involved

because they did not understand them due to their lack of

preparation.

This grievance was also bumped up to the state level.

Wolfe did not obtain mechanic reports as promised. The state panel

met on August 22, 1996, almost a year after the grievance was filed.

Humphress, being informed of this meeting, attended the state panel

meeting on his own time and expense.

The numerous safety violations by UPS since March 1994

to present are so numerous they would take ten pages to discuss.

These safety and health issues have long been made known to Local

89. Local 89 has done nothing despite the fact that National

Teamsters is repeatedly raising the issue of UPS's disregard of

health and safety. Repeated literature is sent to Local 89 regarding

same.

Despite such knowledge from National Teamsters and

despite the fact that Humphress, 22 drivers in Campbellsville, and

other drivers in Kentucky have been raising issues of safety, health,

and repetitive stress injuries for the last three (3) years, Local 89 did

no investigation, no gathering of information, or aided these

grievances in anyway.

Local 89 representatives travel to local grievance hearings

with UPS management, which in itself gives the appearance of a

conflict of loyalty. Twenty-year plus serving union stewards came

not to trust Local 89 and the state panel process.

Humphress had been lied to, not represented, manipulated

and deceived by Local 89 and he did not trust his representatives.

Humphress had exhausted his remedies, thus this lawsuit was filed

on March 8, 1996.

In this action, Humphress alleged a hybrid claim under §

301 of the Labor Management Relations Act, against UPS for

violating the collective bargaining agreement and against Local 89

for breaching its duty of fair representation. Humphress also

alleged various state law claims, including a claim for unlawful

retaliation by UPS.

On October 7, 1997, the district court granted summary

judgment for the defendants and dismissed all of Humphress’ claims

except for the Kentucky Civil Right Act claim for which the court

declined pendent jurisdiction and dismissed without prejudice.

Humphress timely filed a Notice of Appeal to the United

States Court of Appeals for the Sixth Circuit, which upheld the trial

court's decision on November 30, 1998.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONFLICTS AMONG LOWER COURTS

IN THE INTERPRETATION OF THE BURDEN OF

PROOF FOR A HYBRID § 301 CLAIM.

This court has recognized an individual's right to bring a

suit under § 301 of the Labor Management Relations Act, 1947, 29

U.S.C.A. Sec. 185 (1978) ("Sec. 301"), as a hybrid claim against an

employer for violating the collective bargaining agreement and

against the union for violating its duty of fair representation. Smith

v. Evening News Ass'n, 371 U.S. 195, 200, 83 S.Ct. 267, 270, 9

L.Ed.2d 246 (1962). Although such a right exists, the Sixth Circuit

has created an impossible standard to maintain such an action by its

holding in this case.

Humphress' valid contract violations were not even

addressed. The district court found, and the Sixth Circuit agreed,

that Humphress did not present sufficient evidence that Local 89

acted “arbitrarily, discriminatory, or in bad faith" in handling his

grievance. These terms "arbitrarily, discriminatory, or in bad faith"

are derived from this court's opinion in Vaca v. Sipes, 386 U.S. 171,

17 L.Ed.2d 842 (1967).

In Thomas v. United Parcel Service, Inc., 890 F.2d 909 (7th

Cir. 1989), the Seventh Circuit dealt with a hybrid § 301 case with

virtually identical facts to the present case. Thomas, like the present

case involved UPS and a local union affiliated with Teamsters.

In Thomas, the Seventh Circuit held that a material issue of

fact existed, precluding summary judgment, as to whether the union

breached its duty of fair representation by intentionally undermining

an employee's grievance due to the employee's political allegiances

8 As discussed later herein, there is no exhaustion of

remedies requirement if the union breached its duty of fair

representation. See, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 913-

914, 17 L.Ed.2d 842 (1967).

within the union. The Seventh Court stated. "[i]t is well established

that ‘the use of forbidden grounds of decisions .. . creates a

legitimate claim of ‘unfair’ representation. [cite omitted]. Among

these ‘forbidden grounds of decision’ are the employee's position on

the union and its leaders,’ [cite omitted]...'or adheres to some

minority faction of the union." Id., at 923 (cites omitted). Further,

"union conduct motivated out of a distaste for the member's political

view may constitute a breach of the duty of fair representation.” Id..

(cites omitted).

As in this case, the bias involved in Thomas was the local

union's opposition and dislike for Teamsters for a Democratic Union

("TDU"), a reform group with the Union. Id., at 913. The plaintiff,

like Humphress in this case, was "an active and visible member of

TDU, he campaigned for reform candidates running on the slate,

fetc.]....". Id... The court stated that evidence of union members

hostility toward TDU coupled with, "the failure to conduct an

independent investigation of the facts..., to request documents as

authorized by the collective bargaining agreement, and to inform the

appellant..., these acts and omission were sufficient to constitute a

breach of the union's duty of fair representation. Id., at 913. As

such, the Seventh Circuit held that the district court erred in not

considering this evidence and granting summary judgment by

requiring the plaintiff to show substantial evidence of fraud,

deceitful actions or dishonest conduct. Id., at 923.

The Sixth Circuit was presented with almost identical

evidence in the present case. In fact, the evidence was even more

compelling as Humphress had evidence that Local 89 had

previously told UPS to fire him! Despite same, the Sixth Circuit

held that such evidence was insufficient to establish that Local 89

breached its duty of fair representation. The district court held, and

the Sixth Circuit affirmed, that evidence of animosity and directives

was not substantive or inferential unless Humphress showed

specific instances that a grievance would be prejudiced.

Furthermore, courts have held the following facts were

sufficient to constitute a violation of a union's duty of fair

representation or created disputed issues of fact: (1) union did not

progress a suspended grievance to a National board where grievance

had apparent merit; (2) union's processing of a grievance was inept

and done in a perfunctory fashion; (3) union failed to timely pursue

the grievance: (4) employee repeatedly told the union to process his

grievance, union made no investigation or evaluation of merits of

grievance, and evidenced animosity existed between union members

and employee; (5) union had told employer not to hire an employee:

(6) evidence showed that union could have protested more

vigorously; (7) union failed to investigate grievance, failed to do

things as requested like talk to people, and political antagonism

existed between union and member; and (8) union lied to the

employee about its intention and respects and did not do things as

promised.?

Humphress presented evidence of all of the above facts.

Humphress was lied to by his union, Local 89 caused an interunion

grievance to be filed against him, Local 89 threatened him with loss

of same by the same union judges who had told UPS to fire him,

Local 89 ignored repeated requests to reinstate his grievance,

Humphress nor his union steward were told about the state panel

meeting or the result, the union did absolutely no investigation or

anything to aid his grievance in any way, Local 89 did not

familiarize itself the grievance, Humphress had to fight and argue

with Local 89 due to their lack of preparation, Local 89 simply went

9 See in order, Harrison v. United Transportation Union, 530

F.2d 588 (4th Cir. 1975), cert. denied, 425 U.S. 958 (1976);

Milstead v. International Brotherhood of Teamsters. Local 957. 580

F.2d 232 (6th Cir. 1978), cert denied, 454 U.S. 896 (1979);

International Brotherhood of Electrical Workers v. Foust, 442 U.S.

42; 60 L.Ed.2d 698 (1979); Soto Segarra v. Sea-Land Service. Inc..,

581 F.2d 291 (ist Cir. 1978); Wallace v. International Organization

of Masters, Mates & Pilots, 547 F.Supp. 155 (S.D.N.Y __); Smith y.

Hussmann Refrigerator Co., 619 F.2d 1229 (8th Cir. 1980); St. Clair

y. International Brotherhood of Teamsters, 422 F.2d 128 (6th Cir.

1969); Hines v. Chauffeurs, Teamsters. etc., 506 F.2d | 153, rvd.. in

part on other gnds., 424 U.S. 554 (1976); Boldine v. International

Union, United Auto., 581 F.2d 145 (7th Cir. 1978).

through the motions. long serving union stewards came to distrust

Local 89 and the state panel process, etc..

Despite all this evidence, the Sixth Circuit held that same

was insufficient evidence to even create a question for the jury as to

whether Local 89 breached its duty of fair representation.

The Supreme Court should grant certiorari to resolve

conflicts between the circuits to explain whether the evidence

presented by Humphress or what other evidence is sufficient to

show a union's breach of its duty of fair representation in processing

an individual's grievance.

The Supreme Court should further grant certiorari to

explain what deference, if any, a union is entitled to when

processing an individual's grievance when the interests of the

individual is synonymous with the interests of the group.

In Thomas, the Seventh Circuit reasoned that a union has

less discretion in the grievance process, has "no privileged status

and has both a more restricted range of options and a more

particularized set of obligations." Id., 890 F.2d at 919. The

Seventh Circuit stated that, "[a]s the interests of the union and a

specific member coalesce, union conduct that does not benefit that

member is more difficult to justify." Id.

In the present case, Humphress' grievance and interests

coalesced with the other drivers. The issues of safety and health

concerned all employees represented by Local 89. Employees and

union stewards acioss the state voiced safety and health concerns.

The pretextual removal of all gearshifts, resulted in two group

grievances relating to the removed gearshifts and other related

health and safety issues. Despite the fact that these grievances were

filed by the majority of drivers, Local 89 did not do any

investigation or gather any information relating to these health and

safety grievances. The concerns had been raised a year and one half

earlier but Local 89 did nothing. Local 89 did not support the group

grievances. Teamsters repeatedly accused UPS of violating safety

standards yet Local 89 did nothing. These safety/health grievances

took one to two years to be finally resolved.!9

10 Under the Masters Agreement, local hearings are to occur

The district court granted broad discretion to Local 89 and

its actions in granting summary judgment. This court should grant

certiorari to explain whether the "arbitrarily, discriminatory, or in

bad faith" standard of Sipes is even applicable when a union

processes a grievance for an individual whose rights are

synonymous with the union/group. Even if discretion is granted, the

Supreme Court should explain the parameters of that discretion.

If. CERTIORARI SHOULD BE GRANTED TO

ADDRESS IMPORTANT LEGAL ISSUES

INVOLVING EXHAUSTION OF CONTRACTUAL

REMEDIES FOR A HYBRID § 301 CLAIM.

The district court properly held, and the Sixth Circuit

agreed, that an employee must give his union an Opportunity to

pursue his claims and must at least attempt to exhaust all grievance

and arbitration procedures before filing suit. See, Vaca v. Sipes.

386 U.S. 171, 87 S.Ct. 903. 913-914, 17 L.Ed.2d 842 (1967).

Under the collective bargaining agreement there are five

steps whereby a grievance proceeds to successive steps if "not

resolved." Under Conference Agreement, art. 5, § 1, a grievance is

“resolved" and final when a decision is reached at any Stage.

The district court found that Humphress did not exhaust his

remedies because he did not file a new modified grievance. The

undisputed facts show that Humphress' grievance was resolved by

the state panel decision which denied and dismissed it.

The district court held that Humphress should have filed a

new different grievance raising a new issue as told by his union.

However, a different grievance would have been just that: a new,

different grievance. The district court acknowledged same by its

finding that "Humphress failed to heed the union's advice about

within 5 days after the grievance is filed, then the state panel hearing

is to occur within 15 days and next the JAC hearing is to occur

within 15 days thereafter.

restructuring his grievance to raise a new issue, UPS' alleged failure

to live up to its agreement." Any subsequent grievance would have

been a new grievance raising a new issue. It would not be part of

the original grievance raising the original issues.

The affirmed holding is important as it has the effect that an

individual member will never be able, or have difficulty, to maintain

a hybrid § 301 claim. All a union has to do to defeat an individual's

rights is to repeatedly tell him to file another "new" grievance when

one is denied. Under the district's courts analysis, an employee

could never exhaust his remedies if the union simply told him to file

a new grievance.

Furthermore, the affirmed district court's holding raises an

important issue of law as to the effect it would have on what issues

an employee could raise in any subsequent hybrid § 301 lawsuit.

The district court acknowledged that if Humphress had filed a new

grievance concerning UPS's failure to comply with the settlement

arrangement, the statutes of limitations on that claim would have

been tolled until the grievance had been resolved. However, the

statute of limitations on the original safety issues would be barred.

In fact, Local 89 made this very argument in its summary

judgment motion, although rejected, by arguing that Humphress'

second conditional withdrawal was "binding" on the "reinstating

grievance,” and that issues raised in the original grievance were

time-barred.

Humphress' issues in his original grievance concerning

violations of the collective bargaining agreement were many. The

effect of the district court's holding is that Humphress would be

denied his rights to raise these numerous contract violations in any

subsequent § 301 lawsuit.

The Supreme Court should grant certiorari to resolve these

important legal questions regarding a union telling an individual to

file a "new" grievance after the original grievance is dismissed..

Il. CERTIORARI SHOULD BE GRANTED TO

ADDRESS IMPORTANT LEGAL ISSUES

INVOLVING FUTILITY OF EXHAUSTION OF

CONTRACTUAL REMEDIES FOR A HYBRID § 301

enn

CLAIM.

In Sipes, this court explained that there is no exhaustion of

remedies requirement if same would be futile. The district court

found that by filing a new grievance, exhaustion of remedies would

not be futile.

The district court acknowledged that the original grievance

and issues raised therein would be futile, by observing that a

grievance characterized exactly as the original one, would be barred

and dismissed. The issue before the district court was whether

administrative remedies on the original grievance and issues raised

therein would be futile, not whether a new grievance would be

futile! Furthermore, on the issue of futility, it had taken almost two

years for the denial and dismissal at the state panel.

The Supreme Court should grant certiorari to resolve this

legal question of whether filing a "new" grievance is futile when

issues raised in the original grievance would be barred.

IV. CERTIORARI SHOULD BE GRANTED TO

ADDRESS IMPORTANT LEGAL ISSUES

INVOLVING § 301 PREEMPTION OF STATE LAW

CLAIMS.

The district court granted summary judgment on

Humphress' state law illegal retaliatory conduct claim. The court

did so by finding/concluding that this claim was preempted by § 301

because an analysis of Humphress' claim for retaliation would

involve a consideration of UPS's defense and requiring an

interpretation of the collective bargaining agreement.

In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 410, 100 L.Ed.2d 410, 421 (1988), the Supreme Court provided

guidance on the issue of § 301 preemption. In Lingle, the Court

held that even if dispute resolution under the collective bargaining

agreement and the state tort claim would require addressing the

same set of facts, as long as the state-law claim can be resolved

without interpreting the agreement itself, the claim is "independent."

Humphress' retaliatory conduct claim is based upon

Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730 (Ky. 1983),

the Kentucky Supreme Court recognized a cause of action for

retaliatory conduct when an employee asserts rights under a

fundamental and well-defined public policy as evidenced by

existing constitutional or statutory provisions. Id., at 731, 732; see

also, Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985).

None of the elements of Humphress state law claim

requires interpretation or even reference to Agreements. Humphress

was retaliated against for complying with federal and state safety

regulations by identifying defects in a DVIR. Implicit with the

federal and state regulations is an employee's right to assert rights

and duties under these regulations without suffering retaliation.

Humphress does not even need to reference or interpret the

Agreements. Article 18 basically just copies federal regulations!

All Humphress needs to prevail on this claim are the federal

regulations and Hughes and UPS admissions and conduct. The

federal regulations require Humphress to report safety defects on

DVIR. 49 CFR § 396.11. Federal regulations require UPS to not

put unsafe vehicles in operation or to put vehicles in operation

which defects reported by drivers have not been repaired. 49 CFR §

396.3 and 396.9. Federal regulations show that the vehicle was

"unsafe."

_ The district court and Sixth Circuit, in circumventing

Lingle, simply made statements that the retaliation claim involved

interpretation of the Agreements and was therefore preempted under

§ 301. No provision in need of interpretation was cited and actually

no defense was available under the Agreements.

Under the Sixth Circuit's holding, all an employer and union

have to do to create § 301 preemption is to simply incorporate into

the collective bargaining agreement all federal statutes and

regulations for which they have concern. The union and employer

would both benefit and avoid possible liability given the deferential

standard granted unions in a hybrid § 301 claim.

The Supreme Court should grant certiorari to resolve the

important legal question of whether a state-law claim is preempted

when a collective bargaining agreement simply copies and

incorporates statutes and regulations which form the basis of the

state law claim. This court should further grant certiorari to explain

that the Court's requirement under Lingle of "interpretation of the

agreements" for § 301 preemption requires proof of the provision to

be interpreted and defense available thereunder, rather than mere

statements.

CONCLUSION

For the foregoing reasons, petitioner respectfully prays that

his petition for a writ of certiorari be granted.

Respectfully submitted,

THEODORE H. LAVIT

Counsel of Record for the Petitioner

THEODORE H. LAVIT & ASSCS., P.S.C.

One Court Square

P.O. Box 676

Lebanon, Kentucky 40033

(502) 692-447]

No. 97-6409

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Filed Nov. 30, 1998

Clerk, Sixth Circuit

Court of Appeals

DONALD P. HUMPHRESS, )

Plaintiff-Appellant, ) ON APPEAL FROM

) THE UNITED

v. ) STATES DISTRICT

) COURT FOR THE

UNITED PARCEL SERVICE. INC.,and ) THE WESTERN

GENERAL DRIVERS, ) DISTRICT OF

WAREHOUSEMEN & HELPERS, ) KENTUCKY

LOCAL NO. 89,

AFFILIATED WITH INTERNATIONAL

BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN,

AND HELPERS OF AMERICA,

Defendants-Appellees

ee Ne Nee we

Before: NELSON, CLAY, and GIBSON,” Circuit Judges.

PER CURIAM. This is an appeal from a summary

judgment for the defendants -- the plaintiff s employer and his labor

union -- in a "hybrid" action brought under § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, for breach of a

collective bargaining agreement and breach of the duty of fair

representation. (Various pendent state law claims were asserted as

The Honorable John R. Gibson, United States Circuit

Judge for the Eighth Circuit, sitting by designation.

well.) Concluding, upon de novo review, that the district court’s

disposition of the case was correct, we shall affirm the judgment.

The plaintiff, Donald P. Humphress, is a deliveryman

employed by defendant United Parcel Service, Inc., at a UPS facility

in Campbellsville, Kentucky. His lawsuit arises out of a series of

events that began in February of 1994.

On February 28, 1994, when the truck normally driven by

Mr. Humphress was being serviced, UPS had him drive Vehicle No.

40838 as a replacement. At the end of the day Humphress

completed a Driver Vehicle Inspection Report in which he listed a

number of defects in Vehicle No. 40838.

The report went to a UPS mechanic named Steve Hughes.

Mr. Hughes promptly wrote the following note to Vince Elliott, the

manager of the Campbellsville facility:

"Vince!

I Don’t Have the time For this Bull. ____. Can

You Get Don to Give Me A Correct DVIR. OR

Should I Contact Someone Else....”

Mr. Humphress went back to driving his regular vehicle on

March 2, 1994. The next day he discovered that someone had

replaced the modified gearshifter with which the truck had been

equipped some years earlier. The modified shifter -- an extra long

arm bent toward the driver’s seat -- had been installed to

accommodate a painful elbow with which Mr. Humphress liad been

troubled. The new shifter was shorter and straighter than the old

one, and using it allegedly caused a recurrence of Mr. Humphress’

elbow pain. Humphress asked Hughes to reinstall the modified

shifter, but Hughes refused to do so.

On March 14, 1994, Mr. Humphress met with his local

union steward, Kenny Nichols, and the facility manager, Mr. Elliott,

to discuss the removal of his gearshifter and the problems he had

with Vehicle No. 40838. Elliott said that No. 40838 would be "red-

tagged,” or taken out of service. It was not taken out of service, in

fact, although Humphress no longer had to drive it.

On March 17, 1994, Mr. Humphress found his vehicle

littered with knotted plastic bags, and there was grease on the

truck’s back door handle. Humphress had a second meeting with

Elliott and Hughes, among others. on mechanic-driver relations.

Again Humphress brought up the matter of the gearshifter. On

April 3, 1994, after UPS failed to install a shifter satisfactory to him,

Humphress filed a grievance under the procedure set forth in the

relevant collective bargaining agreements. I]

After the grievance was filed, Humphress found himself the

victim of what appeared to be a campaign of harassment. He began

finding more grease on various parts of his truck where it did not

belong; an obscenity was written on his windshield; a picture of his

daughter was defaced; his two-wheel dolly was taken and hidden;

items were hidden inside his vehicle; and his instrument switches

were interfered with.

On May 2, 1994, there was a local hearing on Humphress’

grievance. By agreement, consideration of the grievance was

suspended to allow UPS to attempt to remedy the situation. On May

17, 1994, a new 25-inch bent shifter was installed in Humphress’

vehicle. A few weeks later, however, Humphress realized the

shifter had been getting progressively straighter; someone had

evidently been bending it. Humphress had the same experience

with two subsequent shifters.

On June 20, 1994, the grievance was feactivated. The

reactivated grievance was heard by a state panel on July 15, 1994,

and it was then bumped up to the National Safety and Health

Committee.

Mr. Hughes, the UPS mechanic, subsequently filed an intra-

union grievance against Mr. Humphress. On September 8, 1994,

Humphress withdrew his own grievance after the conclusion of a

settlement in which it was agreed that a suitable gearshifter would

1! There were two such agreements: the National Master United

Parcel Service Agreement beginning August 1, 1993, and the

Central Conference Teamsters Supplemental Agreement beginning

August 1, 1993.

be provided and that Hughes would withdraw his intra-union

grievance.

On April 20, 1995, a satisfactory gearshifter still not having

been installed, Humphress filed what purported to be a "reinstating

grievance." On September 8, 1995. Humphress learned that the

State grievance committee had heard the grievance on August 24,

1995, without his knowledge, and had denied it as settled and

withdrawn.

Larry Wolfe, the agent for the local union, advised

Humphress to file a new grievance based on a breach of the

settlement agreement. Humphress did not take this adv ice. bringing

the present lawsuit instead.

Both UPS and the union moved for summary judgment.

The district court granted the motions. A Kentucky Civil Rights Act

claim asserted against UPS was dismissed without prejudice, and

the other claims (both federal and State) were dismissed with

prejudice. This appeal followed.

The first issue on appeal is whether Humphress exhausted

the mandatory administrative grievance procedure on his § 301

claim, and, if not, whether he was excused from doing so. The

district court concluded -- and we agree -- that the claim that UPS

violated the settlement agreement was not processed through the

mandatory grievance procedure. Although the union had

encouraged Humphress to file a grievance alleging breach of the

settlement agreement, Humphress elected not to do so,!2

Accordingly, we must ask whether Humphress has satisfied any

established exception to the exhaustion requirement.

12 Humphress contends that his "reinstating grievance” of April

20, 1995, did allege that UPS violated the settlement agreement.

This contention is not supported by the record.

Two exceptions are potentially relevant here. Exhaustion js

not required (1) where internal remedies would be futile, see

Winston v. General Drivers Warehousemen & Helpers Local 89,

93 F.3d 251, 255 (6th Cir. 1996), and (2) where the union has

breached its duty of fair representation in handling the grievance,

See Vaca v. Sipes, 386 U.S. 171, 186 (1967).

The futility exception can be dispesed of without much

comment. As explained above. the Original grievance was denied

on the ground that it had been settled and withdrawn. There has

been no showing that the filing of a grievance concerning the

alleged breach of the settlement agreement -- the wrong complained

of here -- would have been futile.

As to the second exception, a union breaches its duty of fair

representation if it acts arbitrarily, discriminatorily, or in bad faith.

See Black v. Ryder/P I FE. Nationwide. Inc., 15 F.3d 573, 584 (6th

Cir. 1994), and Linton v. United Parcel Serv., 15 F.3d 1365, 1369

(6th Cir. 1994), Mr, Humphress did not demonstrate that the union

so acted here. The union advised him to file a second grievance

alleging breach of the settlement agreement, but Mr. Humphress

chose not to accept this advice. There is simply no evidence that the

union’s actions were arbitrary, discriminatory, or in bad faith.

Neither of the potentially relevant exceptions to the

exhaustion requirement applies in this case. Accordingly, the district

court acted properly in dismissing Humphress’ § 301 claim for

failure to exhaust mandatory administrative remedies.

The next assignment of error relates to a claim that the

removal of the modified gearshifter was an act of retaliation for the

filing of a safety complaint with respect to Vehicle No. 40838. Mr.

Humphress challenges the district court’s conclusion that the

retaliation claim was preempted by § 301.13

13 On appeal, Humphress does not challenge the district court’s

determination that his claim for breach of implied covenants of

good faith and fair dealing was similarly preempted.

The district court believed that the defense to this claim

would require interpretation of the relevant collective bargaining

agreements and that dismissal was therefore required under_Allis-

Chaimers_Corp._¥. Lueck, 471 U.S. 202 (1985). We agree:

Resolution of the retaliation claim would entail interpretation of

contractual provisions concerning "Safety and Health Equipment,

Accidents and Reports,” the claim is therefore preempted by § 301.

See Lingle v. Norge Div. of Magic Chef_Inc., 486 U.S. 399, 413

(1988).

Mr. Humphress argues that the district court erred in

granting summary judgment to the defendants on his state law

claims for assault and battery and for intentional infliction of

emotional distress.14 These claims stem from the gearshifter

problem and the placement of grease in the truck. !>

The removal of the gearshifter is claimed to have been a

battery because ‘t was intended to cause injury and because Hughes

knew that Humphress would come in physical contact with the

gearshifter. Because he was afraid of slipping on the grease,

moreover, Humphress claims to have been assaulted.

The facts alleged do not constitute assault or battery under

Kentucky law. See RESTATEMENT (SECOND) OF TORTS § 13,

4|. Summary judgment was therefore proper on these claims.

As to the claim of intentional infliction of emotional

distress, the mechanic’s conduct did not rise to the level of

14 In his brief, Humphress makes clear that the claim for

intentional infliction of emotional distress is asserted against UPS

alone.

15 On appeal, Humphress suggests that by writing an obscenity

on his windshield and defacing a picture of his daughter, Hughes

also committed assault. As these arguments were not made before

the trial court we do not consider them here.

outrageousness necessary for recovery under Kentucky law See

Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990)

(citing Craft v. Rice, 671 S W.2d 247, 249 (Ky. 1984)). Summary

judgment was proper on this claim as well.

Finally, Mr. Humphress challenges the dismissal of his

Kentucky Civil Rights Act claim. We are satisfied, however, that it

was well within the discretion of the district court to decline

supplemental jurisdiction over this claim and to dismiss it without

prejudice. See 28 U S.C. § 1367(c)(3).

For these reasons, and for substantially all of the reasons

given by the district court ‘1 the memorandum opinion entered on

October 7, 1997, the judgment is AFFIRMED

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:96-CV-40(R)

DONALD P. HUMPHRESS. PLAINTIFF,

UNITED PARCEL SERVICE, INC., et al., DEFENDANTS.

ORDER

Defendants having filed separate motions for summary

judgment and the Court being sufficiently advised;

IT IS ORDERED: Defendant General Drivers.

Warehousemen and Helpers, Local 89's motion for summary

judgment (Doc. #21) is GRANTED and all claims against it are

DISMISSED WITH PREJUDICE.

IT IS ALSO ORDERED: Defendant United Parcel

Service, Inc.'s motion for summary judgment (doc #20) is

GRANTED. All of Plaintiffs claims are DISMISSED WITH

PREJUDICE except Plaintiffs claim under the Kentucky Civil

Rights Act. Plaintiffs claims under the Kentucky Civil Rights Act

are DISMISSED WITHOUT PREJUDICE.

This is a final and appealable order. There is no just cause

for delay.

This the 2 day of October, 1997.

/s/ Thomas B. Russell

Thomas B. Russell

Judge, United States District Court

CC:

Counsel

Priddy

Woods

Lavit & Humphress

ENTERED

10-7-97

Clerk, U.S. District Court

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:96-CV-40(R)

DONALD P. HUMPHRESS, PLAINTIFF,

UNITED PARCEL SERVICE, INC., et al., DEFENDANTS.

MEMORANDUM OPINION

This action was filed by Plaintiff Donald Humphress

against his employer, United Parcel Service, Inc. ("UPS"), and his

union, General Drivers, Warehousemen and Helpers, Local Union

89 ("Local 89"). Humphress brings claims under the Labor

Management Relations Act, 29 U.S.C. § 185 and under state law.

This matter is currently before the Court on separate motions for

summary judgment filed by Defendants UPS and Local 89.

FACTS

Humphress has been an employee of UPS since 1969 and is

currently a package driver for the Campbellsville, Kentucky facility.

Humphress is a member of Local 89, which, during all times

relevant to the action, had two collective bargaining agreements

with UPS: the National Master United Parcel Service Agreement

beginning August 1, 1993 ("Master Agreement") and the Central

Conference Teamsters Supplemental Agreement beginning August

1, 1993 ("Conference Agreement"). Both agreements contain

procedures for the resolution of grievances.

On February 28, 1994, Humphress drove vehicle # 40838

instead of his regular vehicle which was being painted. At the end

of the day Humphress completed a driver vehicle inspection report

("DVIR"), as required by the collective bargaining agreements, and

included a comprehensive list of problems with the vehicle which,

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—_—

—

according to Humphress, rendered the vehicle unsafe.!6 The UPS

mechanic, Steve Hughes reacted to the DVIR by Stating that he did

not "have time for this bull _."

On March 2, 1994, Humphress’s regular vehicle was

returned to him, but the special gearshift that had been installed

several years earlier had been removed and replaced with a straight

25 inch gearshift. Humphress had received a modified gearshift

several years earlier because he had been suffering elbow, arm, and

shoulder pain as a result of the standard gearshift’s design.!7 The

modified gearshift was taller and bent toward the seat to make it

easier to adjust. The modification was approved by Tom Mouser,

UPS’s center manager at the time, and cost approximately $10 to

~ $15. Humphress claims that he suffered no further pain while using

the modified gearshift.

Humphress claims that his modified gear shift was removed

by Steve Hughes in retaliation for Humphress’ DVIR on vehicle no.

40838. UPS contends that the modified gearshift was removed

coats

because of a UPS directive requiring that vehicles be returned to

3 their original condition. After the modified gearshift was removed,

Humphress claims that he began experiencing pain in his elbow and

shoulder. He states that he confronted Hughes about the gearshift’s

removal and that Hughes became abusive and challenged

Humphress’s completion of the DVIR on vehicle # 40838. After

complaining to Hughes’ supervisor, Humphress claims that Hughes

threatened that Humphress’s car may not remain in good condition

and would be at the bottom of the list for repairs.

On April 3, 1994, Humphress filed a grievance concerning

the removal of his modified gearshift. Subsequently, Humphress

began finding grease on the footwells beneath his gas, break, and

clutch pedals, which made his feet slip on the pedals. He began

ALDER AE Os pA Ae AOA

19h an SL a Sr Oh IES

16 UPS and the union claim that although the vehicle had been

in an accident, it was safe for use.

17 Defendant Local 89 claims that this pain was caused by

Humphress playing tennis.

RUNG ERE GES Fe

All

eer a

finding grease on the truck’s metal steps, which made it difficult for

him to stand on or climb into the truck. Grease was also found on

the vehicle’s doors which made them difficult to open and close. An

obscenity was written in the dirt on the windshield of Humphress’s

vehicle and a picture of Humphress’s daughter was defaced.

According to Humphress, these and other unusual occurrences

happened nearly every day.!8 Humphress’s experiences were not

unusual and similar things happened to the other drivers.

Humphress also alleges that members of UPS management

began to harass him. He states that he was required to come in from

vacation to attend the hearing of a customer’s complaint and that

UPS tried to make him pay the customer $200.00. He also says that

the district manager. Anson, and another management employee,

Elliot, harassed him while making a delivery by appearing on the

scene as he was leaving a store and lecturing him about safety.

On May 2, 1994, Humphress withdrew his grievance to

give UPS an opportunity to remedy the situation. UPS installed

several different gearshifts in Humphress’s vehicle but these

gearshifts did not completely relieve Humphress’s pain and he

complained that they were still too short. Humphress claims that

other gearshifts at the Campbellsville facility ranged in height from

25 to 31 inches. Some of the gearshifts tried by UPS were angled

toward the driver’s seat, as requested by Humphress, but on several

occasions the angled gearshift was straightened by an unknown

individual. As a result, on June 20, 1994, Humphress reinstated his

grievance.

Hughes then filed an intraunion grievance against

Humphress. Humphress discussed the intraunion grievance with

18 Plaintiff lists several other acts of sabotage, including

removing equipment from his vehicle and concealing it, damaging

and rearranging personal items, and turning instrument switches on

so that the instruments would come on when the vehicle was started.

Descriptions of these incidents can be found at pages 12-14 of

Plaintiffs Response to the Motions for Summary Judgment (doc.

#45).

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Local 89 official Wolfe who, according to Humphress, told

Humphress that he would lose the intraunion grievance and that if

Humphress agreed to withdraw his grievance he would get Hughes

to withdraw the intraunion grievance, would obtain a more

satisfactory gearshift for Humphress, and would put a stop to the

harassment. !9 Humphress withdrew his complaint for the second

time because of Wolfe’s promises and because he feared losing the

intraunion grievance because of his Support for Ron Carey as

National Teamster President.20 Humphress’s grievance was

withdrawn under the agreement that he receive a suitable gearshift."

Plaintiff's Response at 22.

UPS tried additional gearshifts in Humphress’s vehicle but

neither was satisfactory, Humphress contends that UPS then offered

to outfit Humphress with a vehicle with automatic transmission, an

assertion that UPS disputes. Humphress alleges that Wolfe advised

him not to reinstate the grievance but to allow Wolfe to work on the

probiem. Seven months later, after having not received a

satisfactory gearshift or a vehicle with automatic transmission,

Humphress attempted to reinstate his grievance. This reinstated

grievance was heard at the local level where it deadlocked because

there were equal votes for denying and for granting the grievance.

The state panel then heard the grievance and concluded that it was

improper because it was an attempt to reinstate the earlier grievance,

which had been withdrawn as settled.

Finally, Humphress cites various safety concerns that he

19 Defendants contend that Wolfe made no such promises, but

instead agreed to talk to Hughes if Humphress withdrew his

complaint.

20 Plaintiff goes into great detail about his political activities

within Local 89 and how his faction did not support the same

candidates as Local 89’s leadership. He claims that the same

persons who he had antagonized in the past over union leadership

elections would be the persons deciding the merits of the interunion

grievance.

and other drivers have about the UPS vehicles they drive. He claims

that Local 89 and UPS have been made aware of a various safety

concerns of the drivers but have ignored them all. As a result

Humphress says that Local 89 is ignoring its obligations to the

drivers and disregarding their health and safety.

CLAIMS

Plaintiff's complaint contains six claims against UPS and

Local 89. These claims are described as follows:

(1) Plaintiff brings a hybrid claim under § 301 of

the Labor Management Relations Act ("LMRA") in

which he claims that Local 89 breached its duty of

fair representation and UPS violated the collective

bargaining agreement.

(2) UPS’s actions constitute unlawful employment

practices under the Kentucky Civil Rights Act,

KRS § 344.040.

(3) Assault against UPS.

(4) Intentional Infliction of Emotional Distress, or

Outrage, against both Defendants.

(5) Breach of the implied covenants of good faith

and fair dealing against both Defendants

(6) Unlawful retaliation against UPS.

Complaint (doc. #1).

STANDARD

Federal Rule of Civil Procedure 56(c) allows summary

judgment to be granted "if the pleadings, depositions, answers to

interrogatories and admissions of file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law."

The moving party must carry the initial burden by “informing the

district court of the basis for its motion" and identifying the matter

that "it believes demonstrate(s) the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S.Ct. 2548, 91 L. Ed.2d 265 (1986). The moving party can make

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this showing "by demonstrating that the plaintiff, after an adequate

opportunity for discovery, was unable to meet [his or] her burden of

proof." Street v. Bradford & Co.. 886 F.2d 1472, 1478 (6th Cir.

1989). In determining whether summary judgment is appropriate, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. Matsushita Electrical

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.

1348, 89 L. ED.2d 538 (1986).

If the moving party meets its burden, the burden then shifts

to the nonmoving party to present "specific facts showing that there

is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The Supreme Court

has held that “not every issue of fact or conflicting inference

presents a genuine issue of material fact" and "the materiality of any

fact should be determined by the substantive law of the case.” Sireet

v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The

Supreme Court has held that the standard for granting summary

judgment is the same as that for granting a motion for directed

verdict. Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.

Ct.2505, 91 L. Ed.2d 202 (1986). Liberty Lobby, then, requires that

a motion for summary judgment be granted unless the evidence Is

such that the trier of fact could find for the nonmoving party. Jd.

DISCUSSION

1. Labor Management Relations Act

Humphress’s first claim is a hybrid claim under the § 301 of

the Labor Management Relations Act ("LMRA") claiming UPS

violated the collective bargaining agreement and Local 89 violated

its duty of fair representation. In Smith v. Evening News Ass ‘n., 371

U.S. 195, 200, 83 S. Ct. 267, 270, 9 L. Ed.2d 246 (1962), the

Supreme Court recognized the right of individuals to bring suits in

federal court under § 301. However, "federal labor policy requires

that individual employees wishing to assert contract grievances

must attempt use of the contract grievance procedure agreed upon

by employer and union as the mode of redress."__Republic Steel

Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 616, 13 L. Ed.2d

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580 (1965). An employee must give the union an opportunity to

pursue his claim unless the contract states otherwise. /d. at 653, 85

S. Ct. at 614.

When an agreement includes grievance or-arbitration

procedures that are intended to be the exclusive remedy for

employee complaints, an employee must at least attempt to exhaust

all grievance and arbitration procedures provided for in the

agreement before filing suit. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.

> 903, 913-14, 17 L. Ed.2d 842 (1967); see_also Clayton_v.

International Union, United Auto., Aerospace and Agric. Implement

Workers, 451 U.S. 679, 681, 101 S. Ct. 2088, 2090, 68 L. Ed.2d 538

(1981) ("An employee seeking a remedy for an alleged breach of the

collective-bargaining agreement... must attempt to exhaust any

exclusive grievance and arbitration procedures established by that

agreement before he may maintain a suit against his union or

employer under § 301(a) of the Labor Management Relations

Act."): Poole v. Budd Co., 706 F.2d 181, 183 (6th Cir. 1983) ("It is

axiomatic that an aggrieved employee must exhaust any exclusive

grievance and arbitration procedure created in a collective

bargaining agreement prior to bringing a § 301(a) suit against the

employer."). However, because the nature of these grievance

procedures is such that they are controlled by the employer and the

union, there are circumstances in which the employee is not held to

this exhaustion requirement. Id. at 185, 87 S. Ct. at 914. These

circumstances include the following: when the employer's conduct

operates as a repudiation of the procedures set out in the contract;

when the union has breached its duty of fair representation in its

treatment of the grievance; and when utilization of the grievance

process would be futile. Vaca, 386 U.S. at 185-86, 87 S. Ct. at 914;

Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330, 89 S.

Ct. 548, 551, 21 L. Ed.2d 519 (1969). See also Hines _v. Anchor

Motor Freight, Inc., 424 U.S. 554, 567, 96 S. Ct. 1048, 1058, 47 L.

Ed.2d 231 (1976); Clayton, 451 U.S. at 684, 101 S. Ct. at 2093

("[S]ome courts hold that the employee’s failure to exhaust is

excused if union officials would be so hostile to an employee that he

could not hope for a fair hearing.”).

The failure to exhaust remedies provided by the collective

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bargaining agreement is fatal to a hybrid claim under § 301 unless

the employee's failure to exhaust falls within one of the exceptions

listed above. Winston _yv. General Drivers. Warehousemen_&

Helpers, Local 89, 93 F.3d 251, 255 (6th Cir. 1996). As this Court

noted in Panter vy. American Synthetic Rubber Corp., 708 F.Supp.

809, 810-11 (W.D. Ky. 1987). affd 845 F.2d 327 (6th Cir.), cert.

denied, 488 U.S. 827, 109 S. Ct. 77, 102 L. Ed.2d 54 (1988), when a

claim "is based upon a breach of the collective bargaining

agreement [a plaintiff is bound by the terms of that agreement as it

governs the manner in which contractual rights may be enforced."

Both contracts between Local 89 and UPS contain

provisions concerning grievance procedures and the finality of

decisions achieved through the grievance process. The Master

Agreement requires that any grievance or complaint be handled

according to the contract's provisions and a decision by the National

Grievance Committee "shall be final and binding upon all parties.”

Master Agreement art. 8, § 1. The Conference Agreement also

provides grievance procedures to be followed by employees and

states that "a decision reached at any stage shall be final and binding

on both parties.” Conference Agreement art. 5, § 1. Humphress does

not contest the mandatory nature of these provisions.

Under the collective bargaining agreement, every grievance

is processed through a five steps. The complaint is first discussed

with a supervisor, then, if not resolve, is reduced to writing and

referred to a local panel. Then, if the grievance is not resolved, it is

heard by a state panel. If the state panel is unable to resolve the

grievance, it is heard by a joint area committee, then a national

panel. If the grievance remains unresolved, it is submitted to

arbitration. The panel, at each level is comprised of an equal number

of UPS and union representatives. Although a grievance can be

settled or withdrawn, it may not be reinstated. A grievance may be

put on hold while the parties attempt to resolve their differences. If

a grievance placed on hold is not resolved the grievance is returned

to normal status and continues through the grievance process.

Deposition of Larry Wolfe at 104; Deposition of Donald Humphress

at 130-35.

Defendants contend that Humphress failed to exhaust these

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grievance procedures because he refused to modify his grievance so

that the panel would hear it. According to the union, if Humphress

had changed the subject of his grievance from one concerning the

inadequacy of his gearshift to one about UPS’s failure to comply

with the prior settlement, the panel would have heard it. Humphress

replies that he exhausted his grievance remedies because his last

grievance was dismissed and there was no further remedy.

Humphress claims that his final grievance "raised every

conceivable contract violation, including UPS’s failure to live up to

its agreements.” Plaintiff's Response to Motions for Summary

Judgment (doc. #45) at 64-65. However, a careful reading of

Humphress’s grievance demonstrates that he did not specifically

request enforcement of the settlement agreement. Instead, he

repeats his previous complaints, which were addressed in prior

grievances. See Plaintiffs Response (doc. 045) Ex. D ("This

grievance reinstates issues previously related in grievance dated

March 30, 1994."). Humphress did not exhaust his grievance

remedies, therefore this action is barred unless he can show that one

of the exceptions applies.

Humphress claims, in the alternative, that any attempt to

exhaust his contract remedies would have been futile. "[T]he courts

insist upon a clear showing of futility before excusing a failure to

exhaust.” /d. (citing Miller v. Chrysler Corp., 748 F.2d 323 (6th Cir.

1984)). Humphress contends that if he had filed another grievance,

it would have been dismissed in the same manner that the previous

one was. While this may be true of a grievance characterized

exactly as the previous one, Humphress could have filed a grievance

seeking UPS’s compliance with the settlement agreement. A

grievance concerning UPS’s compliance with the settlement

agreements would not be barred because it would raise a new and

separate issue. This new grievance, because it would not have been

automatically dismissed, would not have been futile.

Humphress also alleges that Local 89 officials bore some

animosity toward him for his support of Ron Carey as National

President of the Teamsters Union. Humphress claims that Local 89

officers knew of Humphress’s support for Carey and that Local 89

officers supported other candidates. However, Humphress does not

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point to any specific instances that show his grievance would have

been prejudiced by his support of Carey. In fact, the Central

Conference Agreement states: "UPS representatives and the local

union representatives of the UPS committee, ‘2presenting the UPS

operation and/or local union involved in a proceeding before the

panel. will be ineligible to act as members of the panel during the

proceedings." Central Conference Agreement art. 5 & 2(d).

Humphress has not demonstrated that his political affiliations within

the union prejudiced his past grievances or that they would

prejudice future ones. Thus, he has failed to show that his grievance

would have been futile for this reason.

Humphress next argues that he should not have been

required to bring another grievance because the statute of limitations

on an action under § 301 would have run before the grievance

process was completed. Although the Supreme Court has concluded

that actions brought under '§ 301 have a six month statute of

limitations, De/Costello v. International Brotherhood of Teamsters.

462 U.S. 151, 169, 103 S. Ct. 2281, 2293, 76 L. Ed. 2d 476 (1983), a

claim under § 301 does not accrue until the grievance process is

completed. See. e.g. Haves v. Reynolds Metals Co., 769 F.2d 1520

(11th Cir. 1985). Therefore, if Humphress had filed a new grievance

concerning UPS’s failure to comply with the settlement

arrangement, the statute of limitations on that claim would have

been tolled until the grievance had been resolved.

Humphress does claim that Local 89 breached its duty of

fair representation, which would excuse him from exhausting his

contract remedies. Such a breach of duty by the union would excuse

Humphress’s failure to exhaust his contract remedies. The union, as

the exclusive bargaining agent of the employees, is charged with

"the responsibility and duty of fair representation." Hwmphrey v.

Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed.2d 370 (1964). "The

exclusive agent’s obligation ‘to represent all members of an

appropriate unit requires [it] to make an honest effort to serve the

interests of all of those members, without hostility to any....’ and its

powers are ‘subject always to complete good faith and honesty of

purpose in the exercise of its discretion.’ " Jd at 342. 84 S. Ct. at

367 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 337- 38, 73

S. Ct. 681, 686, 97 L. Ed.2d 1048 (1953)). This duty includes the

union’s efforts in its collective bargaining and in the entorcement of

any collective bargaining agreement. /d.

"The union’s breach of duty relieves the employee of an

express or implied requirement that disputes be settled through

contractual grievance procedures; if it seriously undermines the

integrity of the arbitral process the union’s breach also removes the

bar of the finality provisions of the contract." Hines, 424 US. at

567, 96 S. Ct. at 1058. Thus, enforcement of a collective bargaining

agreement's finality provision is contingent on the union’s

fulfillment of its duty to represent the employee. /d 424 U.S. at 570,

96 S. Ct. at 1059. "A breach of the statutory duty of fair

representation occurs only when a union’s conduct toward a

member of the collective bargaining unit is arbitrary,

discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87

S. Ct. 903, 916, 17 L. Ed.2d 842 (1967); Air Line Pilots Ass'n Int_‘I

v. 0 ‘Neill, 499 U.S. 65, 67, 111 S. Ct. 1127, 1130, 113 L. Ed.2d 51

(1991) (extending Vaca’s holding to all union activity); Walk v. PIE

Nationwide, Inc., 958 F.2d 1323, 1326 (6th Cir. 1992). The

employee does not have to demonstrate bad faith or fraud to bring a

successful claim for breach of duty of fair representation but

negligence or errors in judgment are not enough. Walk, 958 F.2d at

1326. However, a gross mistake or inaction without a reasonable

explanation may demonstrate a breach of the union’s duty. Poole,

706 F.2d at 184. The Sixth Circuit has concluded that a breach of

duty is only actionable if there is a "direct nexus" between the

breach of duty and the resulting injury. Wood, 807 F.2d at 502

"[A] union’s action are arbitrary only if, in light of the

factual and legal landscape at the time of the union’s actions, the

union’s behavior is so far outside a ‘wide range of reasonableness,’

as to be irrational." Air Line Pilots, 499 U.S. at 67, 111 S. Ct. at

1130 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.

Ct. 681, 686, 97 L. Ed.2d 1048 (1953)). Although Air Line Pilots

involved contract negotiations, the Sixth Circuit has extended its

holding to cases involves the grievance process. Walk, 958 F.2d at

1326. The Supreme Court has concluded that Congress did not

intend for a federal court to replace the union’s decisions with its

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own. Thus, "[a]ny substantive examination of a union's

performance... must be highly deferential.” Air Line Pilots. 499 U.S.

at 78, 111 S. Ct. at 1135. "An unwise or even an unconsidered

decision by the union is not necessarily an irrational decision.”

Walk, 958 F.2d at 1326.

Humphress claims that Local 89 breached its duty of fair

representation by failing to conduct an investigation into his

complaints, failing to gather DVIR’s and mechanic records. failing

to investigate the merits of his grievance, and processing his

grievance in a perfunctory manner. Plaintiff s Response (doc. #45)

at 54-55. He alleges that some union officials did not like him and

that the union failed to process "invoke the next step" of the

grievance process. However, Humphress’s arguments are without

factual support. Local 89 processed his grievances despite his

failure to participate. When a majority of the state panel dismissed

Humphress’s last grievance, Local 89 advised him to restructure his

grievance so that the panels would hear it. Humphress refused to

take this advice and instead resorted to this lawsuit.

Local 89 cannot be held responsible for Humphress’s

failure to heed its advice. There is nothing in the record to

demonstrate that Local 89 acted arbitrarily, discriminatorily, or in

bad faith. Humphress, as a union steward, knew that "once

precedent had been set on a given issue" it could not be raised again.

Humphress Deposition at 150. Yet, Humphress failed to heed the

union’s advice about restructuring his grievance to raise a new issue,

UPS's alleged failure to live up to its agreement.

Nor can Local 89 be held responsible for Humphress’s

erroneous perception that his grievance had been conditionally

withdrawn and could be reinstated at any time. Humphress does not

attribute this misunderstanding to any union official’s statements or

actions. Local 89’s actions in this respect are not arbitrary or in bad

faith because Local 89 did not cause Humphress’s incorrect

assumption.

Humphress also makes broad assertions of a conspiracy

between UPS and Local 89 to thwart his grievances while appearing

to process them properly. However, he is unable to support this

assertion. Likewise, he is unable to point to any evidence in support

of his claims that Loca! 89 failed to properly investigate his claims.

This Court cannot conclude, based on the evidence in the record,

that the union’s actions were so far outside a "wide range of

reasonableness” that they rise to a level of irrational arbitrary

conduct. See Air Line Pilots, 499 U.S. at 67, 111 S. Ct. at 1130.

Therefore, Local 89 did not breach its duty of fair representation and

Humphress is not excused from exhausting his contractual remedies.

Humphress’ basis for his § 301 claim is essentially that

UPS failed to live up to its agreement by not installing a gear shift

that would alleviate Humphress’ pain. Humphress failed to exhaust

his grievance remedies because he did not bring a grievance

concerning UPS’s alleged failure to comply with the settlement

agreed to when Humphress’s March 30, 1994 grievance was

withdrawn. Humphress has likewise failed to show that one of the

exceptions to the exhaustion requirement applies. Therefore,

summary judgment is appropriate. -

2. Kentucky Civil Rights Act

Humphress’s second claim concerns UPS’s failure to

accommodate his disability as required by the Kentucky Civil

Rights Act, KRS 344.040, et seg. UPS, in its motion for summary

judgment, contends that this claim is preempted by § 301 and,

therefore, should be dismissed.

The Supreme Court has concluded that the "dimensions of §

301 require the conclusion that substantive principles of federal

labor law must be paramount in the area covered by the statute [so

that] issues raised in suits of a kind covered by § 301 [are] to be

decided according to the precepts of federal labor policy." A/lis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L.

Ed.2d 206 (1985) (quoting Zeamsters v. Lucas Flour Co., 369 U.S.

95, 103, 82 S. Ct. 571, 576, 7 L. Ed.2d 593 (1962)). As a result, the

Court has determined that "when resolution of a state-law claim is

substantially dependent upon analysis of the terms of an agreement

made between the parties in a labor contract, that claim must either

be treated as a § 301 claim or dismissed as pre-empted by federal

labor contract law." Jd. at 220, 105 S. Ct. at 1916. However, if a

state-law claim may be resolved without interpretation of the

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re ee ee

collective bargaining agreement, it is "independent" of the

agreement and not preempted by § 301. Lingle v. Norge Division of

Magic Chef. Inc., 486 U.S. 399, 410, 108 S. Ct. 1877, 1883. 100 L.

Ed.2d 410 (1988).

UPS argues that Humphress’s claim of discrimination on

the basis of disability requires interpretation of the collective

bargaining agreements between UPS and Local 89 because

Humphress sought the return of his gear shift through the grievance

procedures set out by the agreements and because the grievances are

the only means used by Humphress to notify UPS of his disability.

However, claims for violations of statutory civil rights do not

involve negotiable rights that can be diminished through a collective

bargaining agreement. See. e.g. Tisdale v. United Association of

Journeymen and Apprentices of Plumbing and Pipefitting Industry.

25 F.3d 1308 (6th Cir. 1994) (considering Michigan’s civil rights

statute).

In Tisdale, the Sixth Circuit considered a claim for race

discrimination brought under Michigan’s Elliott-Larsen Civil Rights

Act. The defendant-union argued that the plaintiffs’ claims were

preempted by § 301 and should be dismissed. The court,

concluding that plaintiffs’ claims were not preempted, stated: "This

is not fundamentally a labor case involving negotiated contract

terms, which is what § 301 addresses. This is a discrimination case

involving non-negotiable rights guaranteed by the State of

Michigan.... It would be inconsistent with congressional intent under

[§ 301] to pre-empt state rules that proscribe conduct, or establish

rights and obligations independent of a labor contract." Jd. at 1312.

See also LaPointe y. United Autoworkers Local 600, 8 F.3d 376,

380-81 (6th Cir. 1993) ("[T]he ADEA action is not preempted by

section 301 of the Labor Management Relations Act because

employees have the right not to be discriminated against on the

basis of age or handicap without regard to the collective bargaining

agreement’s language about an employee’s rights.’ " (quoting

O'Shea v. Detroit News, 887 F.2d 683, 687 (6th Cir. 1989)); Patton

v. Toshiba America Consumer Prods., 967 F Supp. 283, 287 (M.D.

Tenn. 1997) (holding Title VII claims not preempted).

Humphress’s attempts to resolve his problem through the

A23

grievance procedures should not bar him from bringing a civil rights

claim under the KCRA. Likewise, any attempts to use the grievance

process to claim notification of UPS should not require

interpretation of the collective bargaining agreements. Humphress’s

claim under the KCRA is not preempted by § 301 and summary

judgment is inappropriate.

3. Assault

Humphress’s third claim is that UPS assaulted him by

requiring him to operate a vehicle with a gearshift that did not suit

his needs. Specifically, Humphress claims that (1) UPS, through its

agent, intentionally removed the specially modified gearshift from

Humphress’s car; (2) UPS authorized, allowed, and ratified this

action by its agent and (3) Humphress began to experience pain as a

result. Plaintiff s Response (doc. #45) at 70. In his response to the

motions for summary judgment, Humphress clarifies that he is

seeking to recover for assault and battery.

Under Kentucky law, one is liable for assault if "he acts

intending to cause a harmful or offensive contact... or an imminent

apprehension of such a contact,... and the other is put in such

imminent apprehension." RESTATEMENT (SECOND) OF

TORTS § 21. A battery is "any unlawful touching of the person of

another, either by the aggressor himself, or by any substance set in

motion by him." Sigler v. Ralph, 417 S.W.2d 239, 241 (Ky. 1967).

Humphress has failed to allege a harmful or offensive contact or the

imminent apprehension of such a harmful or offensive contact. The

replacement of his gearshift with another does not constitute such a

contact or the imminent apprehension thereof. Therefore, summary

judgment is appropriate on this claim.

4. Intentional Infliction of Emotional Distress

Humphress next alleges that the "harassment" engaged in

by UPS and Local 89 caused him emotional distress. Under

Kentucky law, a claim of intentional infliction of emotional distress

requires the following:

(1) the wrongdoer’s conduct must be intentional or reckless;

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a e,- a a

(2) the conduct must be outrageous and intolerable

in that it offends against the generally accepted

standards of decency and morality:

(3) there must be a causal connection between the

wrongdoer’s conduct and the emotional distress;

and

(4) the emotional distress must be severe.

Humana vy. Seitz, 796 $.W.2d |. 2-3 (Ky. 1990). Kentucky courts

have recently narrowed this claim so that an actor incurs liability

"only where [he or she] intends to invade the interest in freedom

from severe emotional distress." Rigazio_v. Archdiocese of

Louisville, 853 $.W.2d 295, 298 (Ky. Ct. App. 1993).

The Kentucky courts have construed the outrage element to

require "a deviation from all reasonable bounds of decency [that] is

utterly intolerable in civilized community." Humana, 796 S.W.2d at

3. In Humana v. Seitz, the Kentucky Supreme Court relied upon the

Restatement (Second) of Torts § 46, comment, to determine what is

Outrageous.

It has not been enough that the defendant has acted

with an intent which is tortious .., Or that he has

intended to inflict emotional distress, or even that

his conduct has been characterized by "malice,"....

Liability has been found only where the conduct

has been so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.

RESTATEMENT (SECOND) OF TORTS § 46, comment d. quoted

in Humana, 796 §.W.2d at 3.

Kentucky courts have refused to find Outrage in cases

involving callous comments to the mother of a stillborn baby, see

Humana, 796 S.W.2d at 3-4, the theft of marital assets, see

Whittington y. Whittington, 766 S.W.2d 73 (Ky. 1989), and refusal

to make timely payment of benefits in a worker’s compensation

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case. Zurich Insurance Co. v. Mitchell, 7\2 S.W.2d 340 (Ky. 1986)

Humphress’s allegations fall within this group because his

allegations do not show that either UPS or Local 89 has acted in a

manner that "deviatfes] from all reasonable bounds of decency and

is utterly intolerable in civilized community.” Humana, 796 S.W.2d

at 3. Therefore, summary judgment is appropriate on this claim.

5. Implied Covenants of Good Faith and Fair Dealing

Humphress claims that the collective bargaining agreements

have created an implied covenant of good faith and fair dealing

which UPS breached by removing his gearshift. Such a claim, by its

nature, involves the interpretation of the collective bargaining

agreements either in considering Humphress’s claim or any defense

that relies upon the contract. Since this claim requires an

interpretation of the collective bargaining agreements, it is

preempted by § 301 and shall be dismissed. See Allis-Chalmers

Corp. y. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed.26 206

(1985).

6. Retaliation

Humphress’s final claim is that UPS removed his gearshift

in retaliation for his complaints about the safety of vehicle # 40838.

Humphress claims that federal and state safety regulations imply an

employee’s ability to assert rights under these regulations without

being retaliated against, but he does not cite any cases in support of

this argument. The retaliation alleged by Humphress involves acts

that UPS claims are defensible under the collective bargaining

agreements. Any analysis of Humphress’s claim for retaliation will

involve a consideration of UPS’s defense and, thus, an interpretation

of the collective bargaining agreement. Such an analysis invokes §

301 which preempts this claim. Therefore, summary judgment is

appropriate on this claim. See Allis-Chalmers Corp. v. Lueck, 471

US. 202, 105 S. Ci. 1904, 85 L. Ed.26 206 (1985).

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CONCLUSION

Humphress has failed to demonstrate that he exhausted his

remedies under the collective bargaining agreements, and he has not

demonstrated that any attempt at exhaustion would be futile or that

Local 89 breached its duty of fair representation. As a result he has

failed to meet one of the prerequisites for bringing a hybrid action

under § 301 and summary judgment is appropriate on this claim.

Summary judgment is also appropriate on Humphress’s state law

claims of assault and intentional infliction of emotional distress

because Humphress has failed to meet his burden on those claims.

Likewise, summary judgment is appropriate on Humphress’s claims

of breach of the implied covenant of good faith and fair dealing and

retaliation because these claims require interpretation of the

collective bargaining agreement and are preempted by § 301.

Humphress’s claim for discrimination under the KCRA because it is

not preempted by § 301, however, this is a claim brought under state

law and this Court declines to exercise its jurisdiction. and the claim

shall be dismissed without prejudice. United Mine Workers v

Gibbs, 383 U.S. 822, 86 S. Ct. 1130, 16 L.Ed.26 218 (1966).

/s/ Thomas B. Russell

Thomas B. Russell

Judge,UnitedStatesDistrictCourt

ENTERED

10-7-97

Clerk, U.S. District Court

cc: Priddy

Woods

Lavit & Humphress

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72 2 ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.