S.J. Groves & Sons Co. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 627, s. 77-1915

• Decision Date: 31 July 1978
• Docket Number: Nos. 77-1915,77-1916,s. 77-1915
• Citation: 581 F.2d 1241
• Parties: 99 L.R.R.M. (BNA) 2623, 84 Lab.Cas. P 10,748 S. J. GROVES & SONS COMPANY, a corporation, and Associated General Contractors of Illinois, an incorporated association, et al., Plaintiff-Appellees, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 627, an unincorporated association, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1241

581 F.2d 1241

99 L.R.R.M. (BNA) 2623, 84 Lab.Cas. P 10,748

S. J. GROVES & SONS COMPANY, a corporation, and Associated

General Contractors of Illinois, an incorporated

association, et al., Plaintiff-Appellees, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 627, an

unincorporated association, et al.,

Defendants-Appellants.

Nos. 77-1915, 77-1916.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1978.

Decided July 31, 1978.

Gerry M. Miller, Milwaukee, Wis., for defendants-appellants.

Michael J. Bobroff, St. Louis, Mo., for plaintiffs-appellees.

Before PELL and WOOD, Circuit Judges, and FLAUM, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

In the district court the employer sought declaratory judgments in these consolidated appeals that it had not violated the collective bargaining agreement in refusing to satisfy the claims of two employees. The district court granted summary judgments for the employer. The unions appeal. We affirm.

The first grievance arose from the employer's discharge of employee Bor for fighting on the job site during working hours. Bor seeks reinstatement and back pay. In the second grievance, employee Watson demands payment on his behalf to the contractually specified welfare fund for the twelve month period following his dismissal for negligent operation of a company vehicle.

Pursuant to the collective bargaining agreement grievance procedure, both claims were submitted to a committee composed of equal numbers of management and union representatives. The joint committee deadlocked on both the merits of the grievances and on submission to arbitration. Deadlock was the final step in the grievance procedure. Thereafter the collective bargaining agreement permitted each party to take "all lawful economic recourse." Following deadlock the employer filed this action.

The plaintiffs were represented in the initial stages of the action by a law firm in which the brother of the district court judge was a senior partner. Three days after the union suggested that the judge disqualify himself, plaintiffs' counsel withdrew and was replaced by the plaintiffs' present counsel who has no family relationship with the district judge. Three weeks later summary judgment was granted for the plaintiffs.

Four issues are presented on appeal. (1) Whether the provision of the agreement permitting economic recourse following deadlock foreclosed the plaintiffs from bringing actions pursuant to § 301 of the Labor Management Relations Act of 1947; (2) Whether summary judgment was properly granted in the Bor grievance; (3) Whether summary judgment was properly granted in the Watson dispute; and (4) Did the judge's failure to disqualify himself violate the standards for disqualification set forth in 28 U.S.C. § 455?

I.

The threshold issue in this case is whether the district court was divested of its jurisdiction under § 301 of the Labor Management Relations Act ¹ over the plaintiffs' action for declaratory judgment by the collective bargaining provision permitting the parties "all lawful economic recourse." ² We have addressed this issue before. In Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F.2d 972 (7th Cir. 1973), the collective bargaining agreement provision reserved the parties' rights to resolve deadlocked grievances by economic recourse. The court found that this provision did not divest the court of jurisdiction to resolve the dispute presented by the employer's action for declaratory judgment.

Defendants contend that the Associated General decision is a glaring exception to the holdings and rationale of other federal labor cases and should be overruled. ³ Specifically the defendants contend that the decision is premised on a general federal anti-strike policy which the United States Supreme Court has rejected. The Associated General decision is consistent with the cases preceding it. The reasons for the decision are clearly set out and need not be repeated. As to the claim of an anti-strike bias, the Associated General decision did not prohibit the use of all economic weapons. The court looked to the language of the agreement to determine if non-economic weapons which would be available under § 301 absent the economic-recourse provision were precluded by it and found they were not.

II.

Defendants argue that summary judgment for the plaintiffs on the Bor matter was improperly granted because the question of whether discharge was for justifiable cause was one of fact and not resolvable on summary judgment. The defendants further argue that the absence of findings of fact and conclusions of law by the trial court prevents the plaintiffs from establishing on review that summary judgment was properly entered.

The issue at trial was whether the employer breached the collective bargaining agreement provision authorizing the employer to discharge employees for just cause when it discharged Bor for fighting on the job site during working hours. ⁴ Summary judgments are properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All factual inferences must be drawn in the light most favorable to the opposing party. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). The burden of proof is on the moving party. 6 Moore's Federal Practice P 56.17(11). Findings of fact and conclusions of law by the trial court may be helpful in carrying this burden on review but are not necessary. Fed.R.Civ.P. 52(a); Moore at P 52.08. Disputes over interpretations of "just cause" provisions are resolvable by summary judgment where there is no genuine issue of material fact. ⁵

The parties stipulated to the following facts. "A dispute developed over Bower's (another laborer) use of his personal automobile in this work and led to a heated verbal argument and an exchange of profanity and insult between Atchley and Bor. Bor swung at Atchley, who blocked the blow. Atchley kicked Bor below the stomach, leaving bruises. Bor went to the truck, returned with a three-foot 'Maddox' handle and struck Atchley twice, first, on the back which knocked him to the ground and then again on his legs. Both Bor and Atchley were discharged for fighting on the job." It was also stipulated that prior to this incident Bor had not been disciplined by the company in three years of employment.

The legal issue is whether these stipulated facts constitute just cause. The law in discharge cases consists of the application of the policies underlying just cause provisions on a case-by-case basis. ⁶ It is recognized as a guiding principle that for a penalty to be just it must be in keeping with the seriousness of the offense. ⁷ The rationale for allowing employers to discharge employees for fighting is that such violence threatens the employer's legitimate concerns in job safety and in employee discipline and morale. ⁸ We find that where an employee engaged in a heated dispute with another employee on the job site during working hours and repeatedly struck the other employee with a dangerous weapon, once on the back and a second time while the victim was on the ground, the discharge is fully justified.

Defendants argue that this conclusion is contrary to the trend of arbitration decisions. ⁹ Defendants contend that arbitrators have developed a legal standard which requires the decision-maker to consider mitigating factors such as work record and provocation in determining just cause. Defendants conclude that arbitrators have consistently held discharges to lack just cause on these considerations, that these factors are arguably present here, and that the employer is therefore not entitled to judgment.

We recognize that arbitrators have considered a myriad of factors in deciding whether an employee's violence constituted just cause for discharge. See Union Carbide Corp., 52 LA 423, 425 (Volz 1969) and C. Schmidt Co., 46 LA 1208, 1210 (Volz 1966). Further, the defendants are correct that in some circumstances arbitrators have reinstated discharged employees on the basis of an unblemished work record or the existence of provocation. However, a review of arbitration decisions reveals that whether any mitigating factor mandates reinstatement depends on the peculiar facts of each case. Arbitrators have endorsed the proposition that under certain circumstances fighting alone may be the basis for discharge. Harry M. Stevens, Inc., 51 LA 258, 260 (Turkus 1968); see C. E. Building Products, Inc., supra, note 8; Fedders Corp., supra, note 8. Defendants cite other decisions to show that arbitrators have reinstated employees dismissed for fighting if the offender had a clean record. ¹⁰ We would not anticipate uniformity, but we note that in some of the cases cited the disputes did not reach the level of violence displayed here, nor did the particular participants return to the fight after it initially had been broken up. In all the cases cited the employees involved had seniority far in excess of Bor's three years. A corollary to the above proposition is that discharge may be justified despite the existence of a perfect work record. ¹¹ Also corollary is that discharge may be justified regardless of the existence of provocation, ¹² or where the response is out of proportion to the provocation. ¹³

We conclude that the summary judgment was properly granted. It is undisputed that the discharged employee engaged in a heated dispute, walked away, returned with an ax handle, and repeatedly struck another employee. Under these circumstances, plaintiffs are entitled to judgment as a matter of law despite the employee's clean work record or the suggestion of some provocation.

III.

Summary judgment was also properly granted on the Watson complaint. The issue at trial was...