Brazinski v. Amoco Petroleum Additives Co.

• Decision Date: 09 September 1993
• Docket Number: No. 92-3176,92-3176
• Citation: 6 F.3d 1176
• Parties: 144 L.R.R.M. (BNA) 2153, 62 USLW 2216, 126 Lab.Cas. P 10,857 Michelle BRAZINSKI, et al., Plaintiffs-Appellants, v. AMOCO PETROLEUM ADDITIVES COMPANY and Buck Isbell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1176

6 F.3d 1176

144 L.R.R.M. (BNA) 2153, 62 USLW 2216,

126 Lab.Cas. P 10,857

Michelle BRAZINSKI, et al., Plaintiffs-Appellants, v. AMOCO PETROLEUM ADDITIVES COMPANY and Buck Isbell,

Defendants-Appellees.

No. 92-3176.

United States Court of Appeals,

Seventh Circuit.

Argued April 29, 1993.

Decided Sept. 9, 1993.

John T. Papa, Callis Law Firm, Granite City, IL (argued), for plaintiffs-appellants.

Thomas C. Walsh (argued), Rebecca Jackson, Sabrina M. Wrenn, Bryan Cave, St. Louis, MO, Neil L. Brilliant, Amoco Corp., Chicago, IL, for defendants-appellees.

Before POSNER, FLAUM, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

This case began as a suit for damages brought in state court by eight female workers who complained that they had been subjected to video surveillance in violation of their tort right of privacy. Arguing that the suit actually arose not under state tort law but under section 301 of the Taft-Hartley Act, 29 U.S.C. Sec. 185, because it required interpretation of a collective bargaining agreement, the company removed the case to federal district court, then moved for summary judgment on the ground that the plaintiffs had failed to file a grievance within the thirty days allowed by the collective bargaining agreement and having thus failed to exhaust their remedies under the agreement were not entitled to recover anything under it. The district judge, without any explanation, remanded the case to state court. The company sought mandamus from us, and we ordered the judge to retain the case--because we thought that it was indeed a section 301 case despite the plaintiffs' attempt to plead it as a state-law tort action--and to consider the company's motion for summary judgment. In re Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir.1992). The judge then granted the motion on the ground originally urged by the company and dismissed the suit, precipitating this appeal. The procedural history is a little more complicated than we have made out and there is an additional defendant (the company employee who instituted the surveillance), but these details can be ignored.

The plaintiffs make two arguments. The first, applicable to all of them, is that the filing of a grievance would have been a futile act and therefore was not required. The company's response is that in so arguing the plaintiffs are attempting to reopen issues settled by our previous decision, which established the law of the case. Williams v. Commissioner, 1 F.3d 502, 503-04 (7th Cir.1993). The company is correct. The previous decision held, first, that if a worker brings a suit the merits of which cannot be determined without interpretation of the collective bargaining agreement, that suit, however pleaded, is deemed to arise under section 301 of the Taft-Hartley Act (or under the Railway Labor Act, if the employer is governed by that act); and second, that this suit is of that character. Section 301 creates a remedy for breach of a collective bargaining agreement. If this suit is deemed to arise under section 301, it is a suit for such a breach. When as in this case the collective bargaining agreement establishes a grievance procedure for processing claims of breach, with arbitration if the grievance procedure does not produce a satisfactory result, and the union is cast in the role of representative of the aggrieved worker in the grievance and arbitration processes, the worker cannot prevail in his section 301 suit merely by showing that his grievance is a just one. That is, he cannot show just that the company violated the collective bargaining agreement. He must also show that by arbitrarily refusing to press his grievance the union violated its duty to represent all members of the bargaining unit fairly. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1563-64, 67 L.Ed.2d 732 (1981).

No violation of the duty of fair representation is claimed here. All that the plaintiffs mean by calling the filing of a grievance "futile" is that they don't think their claim rests on the collective bargaining agreement, and therefore--since the grievance procedure is limited to claims of breach of the agreement--a grievance is a claim of such breach--they don't think they could possibly get anything by filing a grievance. But in light of our first decision this is tantamount to a concession that the plaintiffs have no section 301 claim, since such a claim is necessarily founded on the collective bargaining agreement; the only jurisdiction conferred by section 301 is jurisdiction to enforce labor contracts. Concession or not, the failure to file a grievance within the thirty-day deadline fixed by the agreement extinguished the plaintiffs' rights under it, as they have no basis for claiming that the failure was attributable to an arbitrary or otherwise wrongful decision by the union not to represent them.

The problem with this logically impeccable analysis is that it seems to create an arbitrary gap in legal protection. Michael C. Harper, "Limiting Section 301 Preemption: Three Cheers for the Trilogy, Only One for Lingle and Lueck," 66 Chi.-Kent L.Rev. 685, 709-13 (1990). The plaintiffs have a tort claim that they could press in state court if there were no collective bargaining agreement. We seem to be saying that somehow by virtue of the agreement the claim is extinguished simply because the agreement fails to create any contractual right of privacy in substitution for the tort right. The reason that the suit is deemed to arise under section 301 is not that the collective bargaining agreement gives the plaintiffs a contract claim in lieu of their tort claim but that the company has a nonfrivolous argument that the surveillance of which the plaintiffs complain is authorized, albeit implicitly, by the management-rights clause of the agreement, so that the plaintiffs' claim that the surveillance invaded their privacy cannot be resolved without an interpretation of the agreement. Schlacter-Jones v. General Telephone, 936 F.2d 435, 439 (9th Cir.1991). An arbitrator or grievance committee might determine that the management-rights clause did not authorize the surveillance yet reject the plaintiffs' grievance anyway on the ground that the surveillance did not violate any right that the agreement conferred on them, the union having failed to foresee and negotiate for contractual protection of the workers' privacy.

One might have supposed that this gap in legal protection could be closed by invoking, in lieu of preemption, the concept of exhaustion of remedies, a concept frequently invoked in the labor setting because of the unhappy history of judicial intervention in labor disputes. On this view, the plaintiffs have a claim under state tort law and they properly sued upon it in state court; the company had a possible defense, based on the collective bargaining agreement; since it was a defense, it could not be used to remove the case to federal court, Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 2432-33, 96 L.Ed.2d 318 (1987), but it could be used as the basis for referring the case to the grievance machinery that the collective bargaining agreement had made the authorized mode of resolving disputes over interpretation. If the reference was made and the arbitrator or other authorized decision-maker determined that the collective bargaining agreement neither authorized the conduct of which the plaintiffs complained nor provided them with any remedy, this would establish that their claim neither was barred by the collective bargaining agreement nor arose under it. Not arising under it, their claim would not be a claim under section 301 and they would be free to pursue their state law remedies. The danger of a collision between state tort law and the regulation of labor relations by collective bargaining agreements would be avoided.

The Supreme Court appears, however, to have addressed the problem of the remedial gap in a different way. The rule seems to be that if the plaintiff's claim, ostensibly based on state law, cannot be adjudicated without interpretation of the collective bargaining agreement, the claim turns into a federal claim that the agreement itself has been violated. Lingle v. Magic Chef, 486 U.S. 399, 411, 108 S.Ct. 1877, 1884, 100 L.Ed.2d 410 (1988); United Steelworkers of America v. Rawson, 495 U.S. 362, 368-72, 110 S.Ct. 1904, 1909-11, 109 L.Ed.2d 362 (1990). It does not turn into a claim that some federal common law right of employees (a right of privacy, for example) has been violated. For while there is much talk in the cases of judicial responsibility to create a federal common law of collective bargaining agreements under section 301, see, e.g., id. at 368, 110 S.Ct. at 1909, the qualification that we have italicized is crucial. The common law to be made is a common law of contracts, not a source of independent rights, let alone tort rights; for section 301 is as we have said a grant of jurisdiction only to enforce contracts. The Caterpillar case was special because the plaintiffs were suing on the basis of individual employment contracts not alleged to have been somehow extinguished by or absorbed into the federal law of collective bargaining agreements.

So the remedial gap remains--maybe intentionally. Maybe the idea is that if a matter is one that the parties could regulate by contract (as they could not, if the matter involved the state's paramount interest in preventing violence, Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), or was a matter that Congress wanted the courts to decide, McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984)), they ought to do so. (Sometimes they do do so. Miller v. County of Glacier, 257 Mont. 422, 851 P.2d 401 (1993).) The analogy is to the principle of San...