820 F.2d 799 (6th Cir. 1987), 86-5363, Bagsby v. Lewis Bros., Inc. of Tennessee

Docket Nº:86-5363, 86-5364 and 86-5365.
Citation:820 F.2d 799
Party Name:John J. BAGSBY, Plaintiff-Appellant, Cross-Appellee, v. LEWIS BROTHERS, INC., OF TENNESSEE, Local No. 199 of the Bakery, Confectionary and Tobacco Workers' International Union of America, Defendants-Appellees, Cross-Appellants.
Case Date:June 10, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 799

820 F.2d 799 (6th Cir. 1987)

John J. BAGSBY, Plaintiff-Appellant, Cross-Appellee,



Bakery, Confectionary and Tobacco Workers'

International Union of America,

Defendants-Appellees, Cross-Appellants.

Nos. 86-5363, 86-5364 and 86-5365.

United States Court of Appeals, Sixth Circuit

June 10, 1987

Argued Jan. 30, 1987.

Bill Hodde, Madison, Tenn., Thomas F. Bloom (argued), Nashville, Tenn., for plaintiff-appellant, cross-appellee.

Thomas O. Magan (argued), Robert H. Brown, Kahn, Dees, Donovan and Kahn, Evansville, Ind., James G. Stranch, III (argued), Nashville, Tenn., R. Jan Jennings, Jane Stranch, for defendants-appellees, cross-appellants.

Before RYAN and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

In this hybrid breach of contract/unfair representation action under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, defendants-appellees-cross-appellants Lewis Brothers Bakeries, Inc. (the Company) and Local No. 199 of the Bakery, Confectionary & Tobacco Workers' International Union of America (the Union) appeal the judgment of the district court holding that the Company breached the collective bargaining agreement and that the Union breached its duty of fair representation. Plaintiff-Appellant John J. Bagsby (Bagsby) appeals the judgment of the district court denying him the remedies

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of reinstatement, lost benefits, back pay and attorney's fees. We hold that the Company did not breach the collective bargaining agreement. Therefore, the judgment of the district court is vacated and the case is remanded for dismissal.

The factual background of this case is essentially undisputed. The Company (d/b/a Country Hearth Bread) employed Bagsby as a route salesman. Bagsby's primary responsibility was to deliver the Company's bread to retailers. Bagsby was a member of the Union, which was the exclusive bargaining representative under the collective bargaining agreement (the Agreement) between the Union and the Company.

On June 25, 1982, the Company's Nashville manager, Gene Dillard, received a complaint from a retailer concerning errors made by Bagsby in his charges for bread. Dillard immediately suspended Bagsby without pay.

Upon learning of his suspension, Bagsby contacted his shop steward, Joe Holt, and the Union's business agent, Lawrence Simmons. Holt offered little assistance, but Simmons advised Bagsby to report to work the next day 1 and agreed to arrange a grievance meeting involving Bagsby, the Union and the Company.

The grievance meeting, attended by Bagsby, Holt, Simmons, Dillard and Bob Brannon (a sales manager for the Company), took place on July 1, 1982. Just prior to the meeting, Bagsby met with Simmons and informed him that he would refuse to discuss the situation with anyone until the Company complied with its alleged contractual obligation to provide written notice of the reason for his discharge. During the grievance meeting, Dillard explained to Bagsby that the June 25 customer complaint had essentially been dropped, but that the investigation triggered by the complaint had revealed Bagsby's practice of making unauthorized sales and of selling products above the authorized price and pocketing the difference. Dillard requested that Bagsby comment on those allegations, and Simmons advised him to do so, but Bagsby refused to say anything until the Company committed the allegations to writing as allegedly required by the Agreement. This refusal to speak before receiving a written notice apparently stemmed from advice given to Bagsby by legal counsel. The Union did not demand, or even ask for, a written notice. 2 At the meeting's conclusion, Dillard stated that Bagsby was being fired for dishonesty and for selling unauthorized products.

On July 6, 1982, Bagsby received from the Company a Tennessee Department of Employment Security form indicating that he had been fired on June 26, 1982 for dishonesty. Bagsby had no further contact with either the Company or the Union until he filed this suit against them on December 12, 1982.

The district court held that the Company breached Article 8 of the Agreement by failing to provide Bagsby a written notice of the reasons for his discharge, and the Union breached its duty of fair representation by failing to demand or even request such a notice. Article 8 of the Agreement provides:

DISCHARGES: A discharge or suspension may not be executed unless there is a just or proven cause. Such complaints must be put in writing by the Employer with copies to the salesman in question and the Union. The salesman has ten days from the date of the written notice in which to reply. Discharges will be [sic] automatically be in effect if the following items of complaint can be proven.

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  1. Drinking of alcoholic beverages while on duty.

  2. Dishonesty.

  3. Unauthorized passengers being transported in company vehicles.

  4. Usage of any type of narcotics; unless prescribed by the physician for medical usage. Such usage must be in writing by the physician in charge.

  5. No selling of any unauthorized products.

Warning notices will not be in effect after six months from the date of the notice and the salesman in question has ten days in which to reply.

(Emphasis added.) In holding that Article 8 requires written notice even where, as here, the discharge is "automatic" because based on dishonesty and sale of unauthorized products, the court reasoned:

[T]he Article does not expressly state whether the written notice provision applies even under the circumstances of an automatic discharge.... [T]he contract ... detailed specific methods for discharging an employee. In light of the specificity of other contract provisions, the absence of any discussion in the negotiations that an exception to the written notice requirement was being made for automatic discharges indicates that such an exception was not intended by the parties.

Bagsby v. Lewis Brothers Bakeries, Inc., No. 3-82-0053, slip op. at 6-7 (M.D. Tenn. Jan. 31, 1986). In holding that the Union's duty of fair representation required at least a request for a written notice, the court stated:

Under the terms of the contract, plaintiff was entitled to a written description of the company's accusations. Defendant union's business manager stated that he never asked the company to put these charges into writing because he felt that the defendant company had given just cause for plaintiff's dismissal. Regardless of the business manager's feeling that the charges were substantiated, the defendant union had an obligation to obtain a written complaint for its member.

Id. at 8 (citation...

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