Bagsby v. Lewis Bros., Inc. of Tennessee

• Decision Date: 10 June 1987
• Docket Number: No. 199,86-5364 and 86-5365,Nos. 86-5363,199,s. 86-5363
• Citation: 820 F.2d 799
• Parties: 125 L.R.R.M. (BNA) 2761, 106 Lab.Cas. P 12,396 John J. BAGSBY, Plaintiff-Appellant, Cross-Appellee, v. LEWIS BROTHERS, INC., OF TENNESSEE, Localof the Bakery, Confectionary and Tobacco Workers' International Union of America, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 799

820 F.2d 799

125 L.R.R.M. (BNA) 2761, 106 Lab.Cas. P 12,396

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.

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

United States Court of Appeals Sixth Circuit.

Argued Jan. 30, 1987.

Decided June 10, 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 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.

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 omitted).

The district court, however, denied Bagsby's request for reinstatement, lost wages and back pay. The court instead ordered only "that defendant company commit to writing the charges against the plaintiff and afford him an opportunity to reply at a meeting of all concerned parties. If either party wishes to contest the outcome, then that party shall resort to the grievance procedure as specified in the contract." Id. at 8-9. The district court also denied Bagsby's request for an attorney's fee award because, in the district court's view, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), precludes such an award in the absence of express statutory authorization. ³

In this hybrid suit under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, to recover against either the Company or the Union, Bagsby must show that the Company breached the Agreement and that the Union breached its duty of fair representation. Hines v. Anchor Motor Freight Co., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). Unless Bagsby demonstrates both violations, he can not succeed against either party.

The first three sentences of Article 8 provide that discharges and suspensions must be for just or proven cause; that the Company must provide a written complaint; and that the employee has 10 days to respond. The next sentence, however, introduces a list of offenses for which discharges will "automatically be in effect" if "proven." ⁴ The list includes dishonesty and unauthorized product sales--the reasons Bagsby was discharged.

In Bagsby's view, the plain language of Article 8 indicates that the written complaint requirement applies to all discharges. If automatic discharges were meant to be exempt from the written complaint requirement, he argues, such an exception would have been stated expressly and clearly. Therefore, according to Bagsby, the only difference between a standard discharge and an automatic discharge is the timetable of implementation. A standard discharge, he contends, takes effect only after the written complaint is issued and the employee has had ten days to respond; an automatic discharge, on the other hand, takes effect immediately after the decision is made. But both require a written complaint.

In response, the Company and the Union argue that the plain language of Article 8 indicates that the written complaint requirement does not apply to an automatic discharge. To hold otherwise, in their view, would undermine the purpose and effect of distinguishing between standard and automatic discharges.

Upon a de novo review of this issue, see Teamsters Local 348 Health and Welfare Fund v. Kohn Beverage Co., 749 F.2d 315, 317-18 (6th Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2024, 85 L.Ed.2d 305 (1985) ("The construction of collective bargaining agreements ... is a question of law fully reviewable by this court."), we agree with the Company and the Union that Article 8 does not require a written complaint in an automatic discharge context. ⁵ First, we should hesitate to disagree with the interpretation agreed upon by both parties to the Agreement--the Union and the Company--at least where,...