863 F.2d 334 (4th Cir. 1988), 87-3896, Terry v. Chauffeurs, Teamsters and Helpers, Local 391

Docket Nº:87-3896.
Citation:863 F.2d 334
Party Name:Thomas C. TERRY; D.B. Fields; Jim Crowe; Keith Barker; James A. Richards; Don Wright; David L. Giltz; Dale Bishop; Tony Baity; James R. Davis; Don Britt; Lonnie Davis; Jim Wilson; David C. King; Donald E. Henderson; Arthur Jarrell; Ron Ray; J.C. Greer; Gary Peebles; Harold Dyson; Ed Strange; Sam E. Callahan; George C. Blankenship, Jr.; Paul Embry;
Case Date:December 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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863 F.2d 334 (4th Cir. 1988)

Thomas C. TERRY; D.B. Fields; Jim Crowe; Keith Barker;

James A. Richards; Don Wright; David L. Giltz; Dale

Bishop; Tony Baity; James R. Davis; Don Britt; Lonnie

Davis; Jim Wilson; David C. King; Donald E. Henderson;

Arthur Jarrell; Ron Ray; J.C. Greer; Gary Peebles;

Harold Dyson; Ed Strange; Sam E. Callahan; George C.

Blankenship, Jr.; Paul Embry; Clayton Worley; John R.

Marshal; Robert C. Munsey, Plaintiffs-Appellees,

v.

CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 391; McLean

Trucking Company, Defendants--Appellants.

No. 87-3896.

United States Court of Appeals, Fourth Circuit

December 20, 1988

Argued Oct. 4, 1988.

Page 335

John David James (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., on brief), for defendants-appellants.

Robert Mauldin Elliot (Pfefferkorn, Pishko & Elliot, P.A., Winston-Salem, N.C., on brief), for plaintiffs-appellees.

Before SPROUSE, ERVIN and WILKINS, Circuit Judges.

SPROUSE, Circuit Judge:

This is an interlocutory appeal by the Chauffeurs, Teamsters & Helpers, Local 391 ("the Union") from the district court's order refusing to strike the jury trial demand of the plaintiffs, Thomas C. Terry and twenty-six other truck drivers (hereinafter "Terry"), holding that Terry was entitled under the seventh amendment to the United States Constitution to a jury trial of his hybrid Sec. 301/duty of fair representation action, see Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), against his employer and the Union. 1 Terry v. Chauffeurs, Teamsters & Helpers, Local 391, 676 F.Supp. 659 (M.D.N.C.1987). The district court certified its ruling under 28 U.S.C. Sec. 1292(b), and we granted the Union's petition for an interlocutory appeal to consider this single issue.

The plaintiffs were all drivers employed by McLean Trucking Co., Inc., and living in locations other than Winston-Salem, North Carolina. They successfully "bid" on driver vacancies stated by McLean to exist in its Winston-Salem terminal but, after moving to that area, were alternately employed and laid off. In his complaint, Terry alleges that McLean breached its collective bargaining agreement by manipulating recall procedures so as to give other drivers preferences over him. He complains that he consequently sustained substantial loss of wages. He also alleges that the Union failed to fairly represent him in the grievance proceedings he pursued to rectify McLean's breach.

The Union presented Terry's grievances to the Eastern Conference Joint Area Committee, which had been created by the collective bargaining agreement between McLean and the Union. That Committee ordered McLean to adjust its layoff policy to comply with a Change in Operation Plan previously agreed upon between McLean and the Union. Terry claims that McLean thereafter engaged in a pattern of layoff and recall in order to circumvent this ruling, and he filed a second grievance, this

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time with the Joint Bi-State Grievance Committee. It was denied. Terry contends that the Union conspired with McLean and acquiesced in its violation of his rights and in other ways breached its duty of fair representation in the grievance proceedings.

In his complaint filed in the district court, Terry first demanded a declaratory judgment that McLean and the Union acted unlawfully and violated his rights under the law and under the collective bargaining agreement. He also demanded a permanent injunction ending the alleged violations and directing McLean to place him in his proper seniority position. In addition, he requested compensatory and punitive damages, attorneys' fees, and costs.

I

General seventh amendment jurisprudence is well-settled. Thus, only a brief summary is necessary to consider its application to the hybrid Sec. 301/duty of fair representation action.

The seventh amendment to the Constitution of the United States provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

The Supreme Court, of course, has long recognized that the protection provided by this language extends well beyond the common-law forms of action existing in 1791. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447, 7 L.Ed. 732 (1830). Briefly stated, the Court in Parsons held that the seventh amendment applies in all suits which are in the nature of a suit at common law. Any uncertainty concerning the application of the rule to "mixed" suits of law and equity was resolved by Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), decided after the merger of law and equity in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 2; see also Rules Enabling Act of 1934, ch. 651, Sec. 2, 48 Stat. 1064. The Court there held "that only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the...

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