Barnard v. Commercial Carriers, Inc.
| Decision Date | 15 December 1988 |
| Docket Number | No. 87-1017,No. 222,D,222,87-1017 |
| Citation | 863 F.2d 694 |
| Parties | 130 L.R.R.M. (BNA) 2073, 110 Lab.Cas. P 10,873 Robert BARNARD, Plaintiff-Appellant, v. COMMERCIAL CARRIERS, INC.; Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Unionefendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald F. Sysak and Erik Strindberg of Prince, Yeates & Geldzahler, Salt Lake City, Utah, for plaintiff-appellant.
Nathan J. Fullmer, Salt Lake City, Utah, for defendant-appellee, Commercial Carrier.
Stephen W. Cook of Cook & Wilde, P.C., Midvale, Utah, for defendant-appellee, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 222.
Before SEYMOUR, ANDERSON, and BARRETT, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.8(c). The cause is therefore ordered submitted without oral argument.
Robert Barnard (Barnard) appeals from an order of the district court granting summary judgment in favor of Commercial Carriers, Inc. (CCI) and Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 222 (Local No 222), appellees. A review of the relevant, stipulated facts will facilitate our review.
CCI and Local No. 222 are bound by a multi-employer collective bargaining agreement (CBA) bargained for by the Teamsters Union in an attempt to minimize loss of employment and to protect seniority rights when automobile manufacturers terminate the services of one automobile transporter in favor of another. Prior to 1980, Cooper Transportation, Inc. (Cooper) had been engaged by General Motors (GM) for certain automobile hauling. In early 1980, CCI took over the GM hauling previously performed by Cooper. On March 17, 1980, CCI hired Barnard, a Cooper employee since 1972, as a yardman. Thereafter, in accordance with the CBA, CCI "posted" a yardman seniority list showing Barnard with a yard seniority date of March 17, 1980. No protest to Barnard's seniority date was made.
In January and April, 1980, the National Joint Arbitration Committee heard the grievances of several drivers who had been adversely affected by the shift of GM business from Cooper to CCI. By a compromise agreement, CCI and Local No. 222 settled the disputes by establishing a common driver seniority date of April 7, 1980, for all former Cooper drivers hired by CCI.
Barnard worked as a yardman for CCI until October 21, 1982, when he was laid off. On April 4, 1983, Barnard returned to work at CCI, however, not as a yardman, but as a driver. On January 4, 1984, Barnard requested that his CCI yard seniority date of March 17, 1980, be transferred to the driver seniority list. CCI acquiesced in Barnard's request and on April 30, 1984, posted a driver seniority list showing Barnard's driver seniority date as March 17, 1980.
The transfer of Barnard's yard seniority date to the driver's seniority list was in accordance with Article 26 of the CBA 1 under which "the principle of carry-over terminal seniority shall be recognized." (Brief of Appellant, Addendum No. 4, p. 71). Article 53, Section 5 of the CBA also provided that:
Protest to any employee's seniority date or position on such list must be made in writing to the Employer within thirty (30) days after such seniority date or date position first appears and if no protests are timely made, the dates and positions as posted shall be deemed correct. Any such protest which is timely made may be submitted to the grievance procedure. (Brief of Appellant, Addendum No. 4, p. 122).
No protests were made to the April 30, 1984, driver seniority list within 30 days as required by Article 53. On June 11, 1984, 41 days after the April 30, 1984, driver seniority list had been posted, Lester Larry filed a grievance protesting his seniority position. Larry's grievance made no reference to Barnard or the April 30, 1984, driver seniority list. On August 1, 1984, 93 days after the list had been posted, three CCI drivers filed a grievance protesting Barnard's position on the seniority list. Thereafter, Larry's grievance, which was subsequently dismissed as moot, was combined with the August 1, 1984, grievance for consideration by a special subcommittee. A hearing was held on October 10, 1984, to consider the grievances. Barnard was not notified of the hearing and did not appear.
Following the hearing, the special subcommittee issued its report and decision in which it found:
The parties (Company and Local Union) and the employees [including two of the protesting drivers] who were present at the hearing agreed on the facts that occurred in 1980, as follows:
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2. All Cooper drivers were placed below Commercial drivers as of an agreed upon date of April 7, 1980.
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* * * 3. (a) A yard list was posted on March 31, 1980, with Bernard [sic] and Jaketta shown as 3/17/80.
(b) No one protested the 3/17/80 date until Bernard [sic] and Jaketta exercised 'seniority transferability' under Article 26 of the Agreement.
4. (a) The Subcommittee accepts the position of the Local Union and the Company that the April 7, 1980 date for former Cooper drivers was intended to eliminate for the future any seniority controversy as between the former Cooper drivers or the former Cooper drivers and Commercial drivers.
(b) The Subcommittee also accepts the position of the Local Union and Company that the March 17, 1980, date given to the Yard employees, R. Bernard [sic] and F. Jaketta, was not considered a problem in 1980 because 'seniority transferability' under Article 26 of the Master Agreement was not contemplated by the parties and therefore not a factor.
(c) Also, no employee protested the March 17, 1980, date as within thirty (30) days normally necessary under Article 55, Section 5 of the Western Conference Agreement, because it did not directly affect the drivers until 'seniority transferability' was exercised by R. Bernard [sic] and F. Jaketta. R., Vol. I, Tab 26, Exh. K.
The special subcommittee concluded its decision by finding:
Now, therefore, the Special Subcommittee finds based on the above facts and in an attempt to provide equity for all of the parties and to implement the obvious intent of the Company and Local Union in 1980 as follows:
1. Mr. R. Bernard [sic] and Mr. F. Jaketta should have carried a 4/7/80 seniority date as the other Cooper Employees....
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2. The claim of Lester Larry becomes mute [sic] based on the above decision.
After learning of this decision, Barnard filed a grievance with Local No. 222. Local No. 222 refused to process the grievance. On November 9, 1985, Barnard was placed on lay-off status for three days resulting in lost wages and fringe benefits which he would have otherwise received had he retained his driver seniority date of March 17, 1980.
Barnard subsequently filed a "hybrid Sec. 301 2 duty of fair representation" suit setting forth two causes of action against CCI and Local No. 222. Within his complaint, Barnard alleged that CCI had breached the CBA by changing his seniority date on the basis of an untimely filed grievance and that Local No. 222 had breached its implied duty to fairly represent him.
In granting summary judgment in favor of CCI and Local No. 222, the district court found, inter-alia: Under Del Costello v. Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983) an employee must demonstrate both that the collective bargaining agreement was breached and that the union failed to fairly represent the employee's position; Barnard must carry the dual burden of Del Costello in order to override the decision of the special subcommittee; the application of the common driver seniority date of April 7, 1980, to Barnard did not violate the CBA and there was no breach of that contract; there is insufficient evidence to determine whether the special subcommittee found that Larry's grievance filed after the 30-day time period was in substantial compliance with the contract or that equitable principles enabled the special subcommittee to reach the merits; even if Barnard could establish non-compliance with the time provisions of the CBA, he would still have to establish that Local No. 222 breached its duty of fair representation, and; that Local No. 222 did not act arbitrarily or breach its duty of fair representation to Barnard by failing to argue that Larry's grievance was untimely, by failing to inform Barnard of the special subcommittee hearing so he could have presented a timeliness argument or by failing to process Barnard's subsequent grievance challenging the change in his driver seniority date.
On appeal, Barnard contends: (1) Local No. 222 breached its duty of fair representation and CCI breached the terms of the CBA by revoking his March 17, 1980, driver seniority date; (2) the processing of the untimely grievances constituted a breach of the specific language of the CBA and a breach of Local No. 222's duty of fair representation, and (3) certain material facts are present which preclude granting of summary judgment. Because of its dispositive nature, our discussion will be limited to contention (2).
Barnard contends that the processing of the untimely grievances filed by Larry and three other drivers constituted a breach of the specific language of the CBA and a breach of Local No. 222's duty of fair representation. In response, CCI, while acknowledging that no objections were filed to the posting of Barnard's driver seniority date within 30 days as required by Article 53 of the CBA, argues "[i]t is ludicrous for Barnard to argue that CCI had breached the CBA when it had acted in good faith in complying with the decision of the subcommittee as the CBA required it to do." (Brief of Appellee, CEC, p. 19). Local No. 222 responds that it...
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