15 F.3d 1365 (6th Cir. 1994), 92-1058, Linton v. United Parcel Service

Docket Nº:92-1058.
Citation:15 F.3d 1365
Party Name:1994 Fed.App. 39P Leonard LINTON, Plaintiff-Appellant, v. UNITED PARCEL SERVICE; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 243, Defendants-Appellees.
Case Date:February 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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15 F.3d 1365 (6th Cir. 1994)

1994 Fed.App. 39P

Leonard LINTON, Plaintiff-Appellant,


UNITED PARCEL SERVICE; International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Local No. 243, Defendants-Appellees.

No. 92-1058.

United States Court of Appeals, Sixth Circuit

February 8, 1994

Argued Dec. 11, 1992.

Rehearing and Suggestion for Rehearing En Banc

Denied May 19, 1994.

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Barbara M. Harvey (argued and briefed), Detroit, MI, for Leonard K. Linton.

Mark T. Nelson, Butzel, Long, Gust, Klein & Van Zile, Detroit, MI, for United Parcel Service.

Gerry M. Miller, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Francis J. Kortsch (argued and briefed), Milwaukee, WI, for Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 243.

Before: KENNEDY and BATCHELDER, Circuit Judges; and ENGEL, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Plaintiff-appellant Leonard Linton, a former employee of defendant-appellee United Parcel Service (UPS), appeals the district court's granting of summary judgment on his claim that defendant-appellee International Brotherhood of Teamsters, Local 243 ("the union"), breached its duty of fair representation, 779 F.Supp. 897. Because we hold that a triable issue of fact exists as to whether the union breached its duty of fair representation by refusing to appeal Linton's grievance over his discharge to the state grievance committee, we find that summary judgment was not appropriate and that the decision of the district court must be REVERSED.


In 1976, plaintiff Leonard Linton was a 17-year-old high school student in Dearborn Heights. Linton and a companion were arrested by Dearborn police in a field near the high school. Police searched them and found a marijuana cigarette on Linton's companion. Linton claims that he was not aware that his companion had the cigarette. Linton was taken before a state court, where he pled guilty to "loitering" in the field. He was released on his parents' payment of a $50 fine. Linton claims that he was not told that he was charged with a "crime," that he was not offered the assistance of counsel, and that he did not know that pleading guilty to loitering would give him a criminal record. In fact, Linton had pled guilty under an ordinance entitled "loitering where marijuana was kept," which was declared unconstitutional one year after Linton's guilty plea because it permitted conviction without evidence of criminal intent. See People v. Smith, 75 Mich.App. 64, 254 N.W.2d 654 (1977).

Right after high school, Linton filled out an application for employment with UPS. On that application, Linton was asked: "Have you ever been convicted of a crime?" to which he responded "No." Linton was hired by UPS as a part-time loader-unloader, and he continued to work there from 1979 to 1988. UPS admits that during these nine years on the job, Linton was quiet and hardworking.

In September of 1988, Linton applied for a full-time position as a next-day special air driver. UPS required a second employment application for this position. This application also asked whether Linton had ever been convicted of crime, and Linton again responded "No." UPS conducted a criminal history check in connection with Linton's application for full-time employment. On October 17, 1988, Linton was discharged on the basis of a report from the state police computer system stating that Linton had committed a "violation of controlled substance article." The discharge letter claimed that "the employment applications submitted to

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UPS on August 7, 1979, and on September 20, 1988, were falsified." The discharge was pursuant to Article 17 of the UPS-union Collective Bargaining Agreement (CBA), which sets out the grounds for discharge or suspension:

The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of a complaint against such employee to the employee in writing and a copy of the same to the Union, except no warning notice need be given to any employee before he/she is discharged if the cause of such discharge is:

(a) dishonesty;

(b) drinking of, or under the influence of alcoholic beverage or narcotics during the workday;

(c) personal possession or use of drugs, marijuana or L.S.D. during the workday;

(d) gross negligence, resulting in serious accident, as defined and required reportable under D.O.T. regulations;

(e) the carrying of unauthorized passengers while on the job;

(f) failure to report an accident;

(g) an avoidable runaway accident; or,

(h) failure to turn in all monies collected on that day.

It is understood that there are other offenses of extreme seriousness that an employee will be discharged for without a warning letter.

With the above exceptions, no employee shall be suspended or discharged without a local-level hearing or at least one (1) warning letter....

Thus, UPS charged that Linton's false/incorrect statement on his applications constituted "dishonesty" under subsection (a) or an "other offense of extreme seriousness." Linton, however, claimed that he had completed both forms truthfully. And, UPS's records reflect that Linton may not have been aware that he had a criminal record. 1

The collective bargaining agreement also sets out the contractual grievance procedure, which employs a system of joint employer-union committees. The procedure calls initially for informal efforts at the shop level to resolve the dispute. After that, the complaining employee must file a written grievance, and the union's business agent must try to settle the dispute. If the business agent cannot settle the dispute, it is referred to a local-level hearing. The contract states "[i]f the parties fail to reach a decision or agree upon a settlement in the matter, it shall be submitted to the state committee or UPS Joint Area Committee, whichever is applicable within fifteen (15) days." CBA, Article 5, Sec. 1(c). Any cases not resolved at the state level "shall then be submitted to the UPS Joint Area Committee within fifteen (15) days." Id.

Pursuant to this collective bargaining agreement, Linton filed a grievance with the union. The union's business agent, Leon Cooper, met with Linton and requested that Linton bring him documents on the arrest. Cooper also talked to UPS officials and called a potential witness. Cooper told Linton that the union would do all it could to get his job back. At the local level meeting, Cooper made a demand for reinstatement, and explained that Linton had only made an honest mistake because he did not know he had falsified the applications. When UPS rejected the reinstatement demand, Cooper urged Linton to accept a voluntary quit in lieu of a discharge. Initially, Linton indicated to Cooper that he would take the voluntary quit deal. However, on the advice of his union steward, Linton refused and stated that he wanted to take the grievance to the state committee. The local level meeting then recessed.

Linton telephoned Cooper to ask him to use the contractual appeal process, but Cooper responded that there was nothing else he could do. On October 28, 1988, Linton mailed Cooper a written request for an appeal. Cooper wrote back on November 3, 1988:

Per your request at the hearing the Union asked the Company to allow you to resign

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for personal reasons, which the Company agreed with. You later withdrew your request.

Therefore, no contractual violation exists and your grievance was denied. This decision is final and binding.

Again on November 10, 1988, Cooper reiterated that "[w]e shall consider your grievance dated above as denied and closed."

Linton filed a complaint in state court, claiming unjust discharge and breach of the union's duty of fair representation. On May 19, 1989, defendants removed the case to federal court based on the federal question under the Labor Management Relations Act, 29 U.S.C. Sec. 185 [section 301]. Defendants moved for summary judgment on the grounds that plaintiff failed to present a triable issue. On June 19, 1990, then District Court Judge Suhrheinrich granted summary judgment for both defendants on the ground that Linton had no cause of action against the employer for breach of the collective bargaining agreement. Linton appealed. On May 24, 1991, a panel of this Court reversed the district court's granting of summary judgment because genuine issues of fact existed as to the claim that the company breached the collective bargaining agreement. Defendants then moved for summary judgment on the duty of fair representation element. On December 23, 1991, the district court, now with Judge Rosen presiding, again granted summary judgment for both defendants, this time on the ground that Linton failed to state a triable issue of whether the union breached its duty of fair representation. Linton appeals again.


We first must address plaintiff-appellant Linton's argument that the previous opinion of a panel of this Court precluded the district court from granting summary judgment for defendants. We find this argument without merit.

In the first district court opinion, Judge Suhrheinrich first noted that to state a section 301 violation, a plaintiff must show both that the union breached its duty of fair representation and that the company breached the CBA. He then concluded that Linton had failed to show that the company had breached the...

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