506 F.2d 647 (7th Cir. 1974), 73-2132, Gibson v. Kroger Co.

Docket Nº:73-2132.
Citation:506 F.2d 647
Party Name:Dec. P 9803 Edward GIBSON, Plaintiff-Appellant, v. The KROGER COMPANY and Bakery Workers Local No. 372-A of Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America, AFL-CIO, Defendants-Appellees.
Case Date:November 21, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 647

506 F.2d 647 (7th Cir. 1974)

Dec. P 9803

Edward GIBSON, Plaintiff-Appellant,

v.

The KROGER COMPANY and Bakery Workers Local No. 372-A of

Indianapolis, affiliated with the Bakery and

Confectionary Workers International

Union of America, AFL-CIO,

Defendants-Appellees.

No. 73-2132.

United States Court of Appeals, Seventh Circuit

November 21, 1974

Argued Sept. 17, 1974.

As Amended Dec. 2, 1974

Certiorari Denied April 14,1975

See 95 S.Ct. 1571.

Page 648

Theodore D. Wilson, Robert A. Zaban, Indianapolis, Ind., for plaintiff-appellant.

Charles L. Whistler, Michael R. Maine, Dennis E. Zahn, Indianapolis, Ind., for defendants-appellees.

Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge. 1

PERRY, Senior District Judge.

This is an appeal from a judgment of the District Court in favor of the defendants, The Kroger Company ('company') and Bakery Workers Local No. 372-A of Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America, AFLCIO ('union'), in a civil rights action brought by the plaintiff, Edward Gibson, for damages resulting from the company's denial of Gibson's application for the position of forklift operator in the Stock and Receiving Department of the company's Indianapolis bakery subsequent to the loss of his position of helper in said department due to production cutbacks.

Gibson is a member of the Negro race. He was hired by the company in November, 1956, and was assigned to the Cleaning and Pan Cleaning Department where he worked until August, 1969, when he was advanced to the position of Helper in the Stock and Receiving Department ('stockroom').

In April, 1972, there were five employees, including Gibson, in the stockroom. Of the five employees, Gibson had the least priority in the department, i.e., he had the least time in the department itself; however, he had greater plant-wide seniority than two of the five. When,-- as a result of production cutbacks,-- the number of employees required to operate the stockroom was reduced from five to four, Gibson, being lowest in departmental seniority, was transferred out of the department and was given the opportunity to select, in any other department of the plant, any position held by an employee having less plant-wide seniority than Gibson had. Immediately thereafter, on or about April 17, 1972, Gibson asked to be transferred back into the stockroom and to displace ('bump') the employee who was the forklift ('bug') operator in that department. Gibson's request was denied on the grounds that (1) the company's agreement with the union ('labor agreement') did not permit an employee to 'bump', within hiw own department, another employee with greater departmental seniority; and (2) Gibson's contractual prerogative to 'bump' other employees with less plant-wide seniority applied only to departments other than the department from which Gibson had been displaced (by virtue of his junior departmental seniority).

On April 28, 1972, pursuant to the procedure prescribed in the labor agreement for resolution of disputes over the proper interpretation of the labor agreement, Gibson filed a written grievance in which he claimed that he had a contractual right, under the collective bargaining agreement, to 'bump' the stockroon 'bug' operator who had less plant-wide seniority than Gibson, irrespective of their relative departmental seniority.

On June 22, 1972, Gibson filed a complaint with the Indiana Civil Rights Commission, and on August 15, 1972, he

Page 649

filed a complaint with the Equal Employment Opportunity Commission ('EEOC' or 'Commission'). Meanwhile, pursuant to the labor agreement between the company and the union, Gibson's grievance was not resolved through the three-step contractual grievance procedure and, in accordance with the labor agreement, an impartial arbitrator was selected to hear the case and render a decision.

On October 30, 1972, the grievance,-- together with a related group grievance of some other employees who had been transferred in consequence of the reduction in force,-- was arbitrated before Mr. David Dolnick, an eminent labor arbitrator. Gibson was represented at the hearing both by an attorney for the union and by his own personal counsel, who was given an opportunity to participate in the hearing and in the presentation of evidence on Gibson's behalf.

On December 8, 1972, Arbitrator Dolnick issued a detailed opinion denying Gibson's grievance and the aforesaid group grievance. He ruled that under the terms of the labor agreement Gibson was not entitled to the job of 'bug' operator because, notwithstanding the fact that Gibson had more plant-wide seniority than the white employee holding the position, departmental seniority was, under the terms of the agreement, the controlling factor in determining entitlement to the 'bug' operator job. The arbitrator thus sustained the company's interpretation that the labor agreement required the company to permit the 'bug' operator to retain his position, and did not allow the company to...

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