Smith v. Kerrville Bus Co., Inc.

• Decision Date: 18 July 1983
• Docket Number: No. 82-1058,82-1058
• Citation: 709 F.2d 914
• Parties: 113 L.R.R.M. (BNA) 3741, 114 L.R.R.M. (BNA) 2911, 98 Lab.Cas. P 10,313 Ben SMITH, Plaintiff-Appellant, v. KERRVILLE BUS COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 914

709 F.2d 914

113 L.R.R.M. (BNA) 3741, 114 L.R.R.M. (BNA) 2911,

98 Lab.Cas. P 10,313

Ben SMITH, Plaintiff-Appellant, v. KERRVILLE BUS COMPANY, INC., Defendant-Appellee.

No. 82-1058.

United States Court of Appeals Fifth Circuit.

July 18, 1983.

Rehearing and Rehearing En Banc Denied Sept. 7, 1983.

Les Mendelsohn, Barry H. Beer, San Antonio, Tex., for plaintiff-appellant.

Shelton Padgett, J. Joe Harris, San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

Benjamin H. Smith filed suit in state court under Sec. 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. Sec. 185, alleging that his employment was wrongfully terminated by Kerrville Bus Company (Kerrville). Kerrville removed the action, then sought and secured summary judgment rejecting Smith's claims. On the record before us, being unpersuaded of the absence of any dispute as to a material fact and of Kerrville's entitlement to judgment as a matter of law, we reverse and remand.

Facts

Smith drove a bus for Kerrville for 26 years before his termination on July 2, 1979, for "mishandling company property," specifically, failing to report cash fares. After his dismissal Smith sought assistance from the Drivers' Committee, the bus drivers' collective bargaining representative. Although several Committee members interceded on Smith's behalf, Kerrville refused to reinstate him. This action ensued.

At the time of Smith's discharge, a rather exiguous collective bargaining agreement existed between Kerrville and the Drivers' Committee. Under its terms, the employees were assured of certain routes, or "runs," assigned pursuant to seniority bids, specific rates of regular and holiday pay calculated according to seniority, bonuses and allowances for meals and other expenses, and sick leave. With the exception of new employees who failed to complete a 90-day probationary period, all employees earned vacation benefits, again computed according to time in grade.

Aside from a provision for biannual meetings of the Drivers' Committee for the purpose of disposing "of accident and bonus questions, and any other grievances," the collective bargaining agreement was silent with respect to formal grievance or arbitration mechanisms. It was likewise silent as to grounds for employee discharge.

There was no express reference in the bargaining agreement to the Drivers Rule Book, a manual of safety and disciplinary rules promulgated by the employer and distributed to all employees. The Rule Book expressly states: "A Driver may be disciplined or discharged for violation or infraction of Company rules ...", and reiterates throughout that violation of a specific rule "will be grounds for disciplinary action up to and including discharge." The Rule Book also declares that: "Acts of dishonesty are cause for dismissal."

Legal Analysis

Kerrville takes the position that since the collective bargaining agreement contains no express provision relating to discharge, under Texas law it may fire Smith at will. Apparently accepting the validity of this rationale, the district court granted Kerrville's motion for summary judgment. ¹ On appeal, Smith argues that the existence of a just cause restriction on the employer's absolute power to discharge may be implied from the agreement's abbreviated grievance procedure, either alone or in conjunction with the specific grounds for dismissal or discipline set forth in the Drivers Rule Book.

Absent a limiting provision in the employment contract or collective bargaining agreement, an employer may dismiss employees at will. Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972); United States Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Here, the labor contract is silent; it neither reserves to management plenary rights to discharge with or without cause, nor does it stipulate that discharge may be effected only for "good" or "just" cause. Thus the threshold issue in this case is whether the terms and essential logic of the collective bargaining agreement, construed in light of the history of the parties' relationship, warrant the imposition of a just cause restriction on Kerrville's termination authority.

A. Standard of Review

The inquiry whether a just cause limitation on dismissals may be implied from the language of a collective bargaining agreement presents a question of law for the court, see Lowe v. Pate Stevedoring Co., 558 F.2d 769 (5th Cir.1977), while the existence of just cause itself raises a factual issue. Nunez v. Superior Oil Co., 572 F.2d 1119 (5th Cir.1978) (citing Lowe v. Pate Stevedoring Co.). See also Scott v. Anchor Motor Freight, Inc., 496 F.2d 276 (6th Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974). But see Scott v. Riley Co., 645 F.2d 565 (7th Cir.1981); Whitten v. Anchor Motor Freight, Inc., 521 F.2d 1335 (6th Cir.1975), cert. denied, 425 U.S. 981, 96 S.Ct. 2188, 48 L.Ed.2d 807 (1976) (where contract stipulated that particular offense was just cause for termination, no jury issue as to propriety of dismissal for commission of this offense).

Our review of the district court's grant of summary judgment is guided by Fed.R.Civ.P. 56. Rule 56(c) authorizes summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." In gauging the propriety of a grant of summary judgment, we invoke the same legal standards as those which bind the district court. Nicholas Acoustics & Specialty Co. v. H & M Construction Company, Inc., 695 F.2d 839 (5th Cir.1983); Impossible Elec. Tech. v. Wackenhut Prot. Systems, 669 F.2d 1026 (5th Cir.1982). We must view the evidence in the light most favorable to the opposing party, resolving all reasonable doubts concerning the facts in his favor. Breen v. Centrex Corp., 695 F.2d 907 (5th Cir.1983). We may not weigh the probative value of the evidence adduced, or decide any factual issues we might discern in the record, but are instead limited to a determination of whether a genuine issue of material fact remains for disposition " 'so as to insure that factual issues will not be [decided] without the benefit of the truth seeking procedures of a trial.' " Id. at 910 (quoting from Southern Distributing Co. v. Southdown, Inc., 574 F.2d 824, 826 (5th Cir.1978)). That it appears likely that the movant will prevail at trial, or that its facts are ostensibly more plausible, is no reason to grant summary judgment. Jones v. Western Geophysical Co. of America, 669 F.2d 280 (5th Cir.1982). Nor need the nonmovant "respond to the summary judgment motion unless and until the movant has properly carried its burden." Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 497 (5th Cir.1982).

B. Implication of a "Just Cause" Bar to Discharge

We are mindful, as we begin our analysis of the issue presented by the case at bar that judicial interpretation of silence in a document ... is always a tricky and controversial undertaking.... This is especially true with labor contracts, since their formation is typically characterized by intense bargaining and the final contract usually represents hard-fought negotiations and compromises. Quite often, employers and unions exchange numerous quid pro quos, giving clauses and rights in direct exchange.

N.L.R.B. v. South Central Bell Telephone Co., 688 F.2d 345, 352-53 (5th Cir.1982). Labor contracts in general state affirmatively the conditions on which the parties agree. Id. at 353 (citing Torrington Co. v. Metal Prods. Workers Local 1645, 362 F.2d 677 (7th Cir.1966)); Rainbow Glass Co. v. Local Union No. 610, 663 F.2d 814 (8th Cir.1981). Contractual silence, by the same token, is not dispositive of the intent of the parties. N.L.R.B. v. South Central Bell Telephone Co.; Amcar Division, ACF Indus., Inc. v. N.L.R.B., 592 F.2d 422 (8th Cir.1979). As the Supreme Court has recognized, a collective bargaining agreement may not anticipate every situation that may arise between employer and employee. United Steel Workers of America v. Warrior & Gulf Navigation Co.; see Cronin v. Sears, Roebuck & Co., 588 F.2d 616 (8th Cir.1978). A collective bargaining agreement, in the Court's estimation:

is more than a contract; it is a generalized code to govern a myriad of cases which the draftsman cannot wholly anticipate.... The collective agreement covers the whole employment relationship. It calls into being a new common law--the common law of a particular industry or of a particular plant.... one observer has put it:

"... [I]t is not unqualifiedly true that a collective-bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee's claim must fail unless he can point to a specific contract provision upon which the claim is founded. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages. Within the sphere of collective bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement. We must assume that intelligent negotiators acknowledged so plain a need unless they stated a contrary rule in plain words."

United Steelworkers of America v. Warrior's Gulf Navigation Co., 363 U.S. at 578-80, 80 S.Ct. at 1350-52 (quoting from Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-99 (1959)).

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