Smith v. Hussmann Refrigerator Co.

Decision Date26 March 1980
Docket NumberNos. 78-1034,78-1073 and 78-1092,s. 78-1034
Parties103 L.R.R.M. (BNA) 2321, 103 L.R.R.M. (BNA) 2976, 21 Fair Empl.Prac.Cas. 1349, 22 Empl. Prac. Dec. P 30,584, 87 Lab.Cas. P 11,803, 88 Lab.Cas. P 11,963, 5 Fed. R. Evid. Serv. 575 Charles W. SMITH, John Pasley and Ralph Serini, Appellants, Cross-Appellees, v. HUSSMANN REFRIGERATOR COMPANY and Local 13889, United Steelworkers of America, Appellees, Cross-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Louis Gilden, St. Louis, Mo., for Charles W. Smith et al.

Carl B. Frankel, Pittsburgh, Pa., for Union, Local 13889.

Mark J. Bremer, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for Hussmann Refrigerator.

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, en banc.

FLOYD R. GIBSON, Chief Judge.

Plaintiffs Charles Smith, John Pasley and Ralph Serini brought suit in the United States District Court for the Eastern District of Missouri against Hussmann Refrigerator Company (hereinafter referred to as Hussmann or the company) and Local 13889, United Steelworkers of America (hereinafter referred to as the union) for breach of the collective bargaining agreement and breach of the duty of fair representation. In Counts II and III, plaintiff Pasley, a black male, charged violations of 42 U.S.C. §§ 1981 and 1985 (1976), alleging that defendants discriminated against him on the basis of his race by denying him the right to make and enforce contracts and by conspiring to deprive him of the equal protection of the law.

The claims of breach of the collective bargaining agreement and breach of the duty of fair representation were tried to a jury which rendered a verdict against both defendants in favor of plaintiff Smith in the amount of $6500 and plaintiff Pasley in the amount of $2500. Also, in response to special interrogatories, the jury found that plaintiffs Smith and Serini should be awarded the classification of maintenance pipefitter, and that plaintiff Pasley's seniority in the pipefitter classification should be upgraded. The District Court 1 entered judgment in accordance with the jury verdict, but subsequently denied plaintiffs' motion for a supplementary judgment to effect the advisory opinion of the jury represented by the answers to special interrogatories, and granted defendants' motions for judgments notwithstanding the verdict. 2 Plaintiffs Pasley, Smith and Serini appeal from the grant of defendants' motions and the denial of their motion. They request reinstatement of the jury verdict and an order implementing the jury's advisory opinion.

The claims of race discrimination set forth in Counts II and III were removed from jury consideration, and the court, finding no evidence of racial discrimination, determined that neither defendant had violated 42 U.S.C. §§ 1981 and 1985. 3 Plaintiff Pasley claims error in the removal of this claim from the jury and also appeals from the decision on its merits.

On cross-appeal, defendants argue that if the judgment notwithstanding the verdict is reversed, they are entitled to a new trial for the reasons that plaintiffs had no right to a jury trial; certain jury instructions were improper; the District Court erred in excluding evidence of the National Labor Relations Board's (NLRB) dismissal of plaintiffs' charges of unfair representation; and the award indicates that the jury was impassioned or confused.

This appeal was initially submitted to a panel of this court which issued an opinion on January 3, 1979. Thereafter a petition for rehearing en banc was filed and granted. The panel opinion is hereby vacated and the judgment is modified in accordance with this opinion. We affirm the District Court's judgment on Counts II and III of the complaint but reverse the District Court's granting of the motions notwithstanding the verdict and reinstate the jury verdict against Hussmann and the union. We further remand to the District Court for reconsideration of whether the jury's advisory opinions regarding classification and seniority status should be implemented.

I.

At all times relevant to this proceeding, plaintiffs were employees at Hussmann's Bridgeton, Missouri, plant and were members of the union, and a collective bargaining agreement between defendants was in effect pursuant to which the union represented approximately 1500 production and maintenance employees at Hussmann's Bridgeton plant. This agreement specifically provided that in the matter of promotions seniority should govern when the factors of ability and skill are substantially equal between those being considered. 4

On April 22, 1975, Hussmann, in accordance with the collective bargaining agreement, posted two openings for temporary positions as maintenance pipefitters. Sixty-four employees bid for these openings. Hussmann's maintenance foreman, Schwartz, interviewed groups of the most senior employees and selected Pasley and Smith on the basis of superior skill and ability. On May 6, 1975, Hussmann posted an opening for a permanent maintenance pipefitter. Although forty-six employees bid for this position, it was awarded to Pasley since he was already working in the classification. Three more positions in this classification, one permanent and two temporary, opened on May 13, 1975. An employee who had previously held the classification received the permanent job. Plaintiff Serini and another employee, Watson, received the temporary positions. Subsequently, plaintiff Smith bid into a permanent position as maintenance pipefitter as a result of an opening posted May 20, 1975.

Twenty-six unsuccessful bidders filed grievances claiming that Hussmann had violated the collective bargaining agreement in making the promotions. Of these grievances, the union selected four to process. These four had been filed by employees with greater seniority than the successful bidders. The union processed these grievances through the five-step grievance and arbitration procedure, as described in the collective bargaining agreement.

At the arbitration hearing, the union called each of the four grievants to testify about his skill and ability. The successful bidders were not invited to attend the hearing and their only representation was presented by Hussmann's foreman, Schwartz, who related the substance of his interviews with the successful bidders as well as the substance of his interviews with the grievants.

On October 3, 1975, the arbitrator issued his award. He clearly denied two of the grievances on the grounds that the grievants lacked substantial equality of skill and ability. The arbitrator granted two grievances, those of Dattilo and Krassinger, and ordered Hussmann to give them the jobs with retroactive seniority and back pay. Further, the award named as those entitled to hold the maintenance pipefitter classification: Dattilo, Pasley, Smith, Watson, Krassinger and Serini.

Hussmann originally interpreted the arbitrator's decision as awarding the classification to all six employees named, with their seniority in the classification in the order listed. While the plaintiffs did not rejoice at this outcome, they were satisfied with this resolution of the dispute because they retained the classification. 5 The union, however, objected to the award arguing that the arbitrator did not have authority to create six maintenance pipefitter classifications from four posted jobs. In addition the award had two technical errors: it misstated the seniority of plaintiff Smith, giving him ten years more seniority than he actually had, and awarded Watson a position for which he had not bid.

Officials of the union and the company met to discuss these problems with the award. At this time they agreed that only four employees should be granted the classification and that those employees would be Dattilo, Krassinger, Watson and Pasley. Then, ostensibly to seek "clarification" of the award, they returned to the arbitrator. A meeting for this purpose was held October 31, 1975. No additional testimony was taken and no employees were present except the representatives of Hussmann and the union. The parties informed the arbitrator of their prior agreement and presented him with the correct seniority dates and bid sheets.

The arbitrator's supplemental and corrective decision, issued November 4, 1975, awarded the pipefitter classification to the four most senior employees in the order of their seniority. Thus, Dattilo, Krassinger, Watson, and Pasley received the classification. 6 Smith and Serini were entitled to be paid for the time they actually performed the job, but on any future vacancies their bid would be considered on the same basis as any other employee without seniority in the classification. This decision, however, retained the error in plaintiff Smith's seniority, which the arbitrator later corrected after it was brought to his attention.

At the time of the second meeting with the arbitrator, the parties also agreed that a grievance filed against Serini by another employee, Pogue, would be processed against Pasley instead of Serini. At the time Pogue filed the grievance, Serini appeared to hold the fourth senior position in the classification, but by the time the union arbitrated the grievance Pasley held that position. Pasley requested permission to be present at this arbitration hearing, but his request was denied. Pogue attended the hearing at the union's invitation. Subsequently, Pogue's grievance was denied.

Plaintiffs, who had learned from a union official the result of the second meeting with the arbitrator before he issued his decision, attempted to file grievances to challenge the November 4 arbitration decision. Smith and Serini alleged that they were entitled to the classification, and Pasley challenged the realignment of his seniority. The union refused to...

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