Deringer v. Columbia Transp. Div., Oglebay Norton Co.

• Citation: 866 F.2d 859
• Decision Date: 30 January 1989
• Docket Number: No. 87-3392,87-3392
• Parties: 130 L.R.R.M. (BNA) 2451, 57 USLW 2483, 110 Lab.Cas. P 10,936, 13 Fed.R.Serv.3d 557 Alonzo DERINGER, Plaintiff-Appellant, v. COLUMBIA TRANSPORTATION DIVISION, OGLEBAY NORTON CO. and District 2, Marine Engineers Beneficial Association, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 859

866 F.2d 859

130 L.R.R.M. (BNA) 2451, 57 USLW 2483,

110 Lab.Cas. P 10,936,

13 Fed.R.Serv.3d 557

Alonzo DERINGER, Plaintiff-Appellant, v. COLUMBIA TRANSPORTATION DIVISION, OGLEBAY NORTON CO. and District 2, Marine Engineers Beneficial Association, Defendants-Appellees.

No. 87-3392.

United States Court of Appeals Sixth Circuit.

Argued May 19, 1988.

Decided Jan. 30, 1989.

Dennis P. Strong (argued), Bayford, Senerius, Strong & Hershman, Toledo, Ohio, for plaintiff-appellant.

Daniel A. Ward, David L. Parham, T. Merritt Bumpass, Jr. (argued), Thompson, Hine and Flory, Glenn R. Schmitt, Cleveland, Ohio, for defendants-appellees.

Gerald B. Lackey, Lackey, Nusbaum, Phillips & Harris, Toledo, Ohio, Joan Torzewski (argued), Toledo, Ohio, for Marine Engineers.

Before: KEITH and WELLFORD, Circuit Judges; and HORTON ^*, Chief District Judge.

WELLFORD, Circuit Judge.

Plaintiff Alonzo Deringer appeals the district court's judgment for his employer, Columbia Transportation Division of Oglebay Norton Co. ("Columbia"), and his union, District 2, Marine Engineers Beneficial Association ("MEBA"), in this action brought pursuant to Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. Deringer alleged that a violation of the collective bargaining agreement ("CBA") between Columbia and MEBA occurred when another employee with a higher level of licensure as an engineer, but with less continuous service time with Columbia, "bumped back" Deringer from a position as Second Assistant Engineer to a position as Third Assistant Engineer. He also alleged that MEBA breached its duty of fair representation by failing to pursue to arbitration his claim of contract breach. We conclude that Deringer's Sec. 301 claim must fail. We also consider the interesting question, one of first impression before this court: Does a plaintiff in a hybrid Sec. 301/unfair representation action enjoy a right to jury trial?

I. Facts

Deringer has been employed by Columbia since 1956 and has been a member of MEBA since 1966. He holds a Second Assistant Engineer's license ¹ for steam vessels. Beginning in 1979, Columbia was forced by a decline in the steel industry to reduce the number of vessels it operated on the Great Lakes. As a result of this reduction in forces, on the seniority lists that Columbia published in February 1980, Deringer was "bumped" to a lower position on the list for Second Assistant Engineers by two employees who had been moved from the bottom of the First Assistant Engineer list to the top of the Second Assistant Engineer list. In April 1980 Deringer wrote two letters to a MEBA vice president complaining that the two employees bumped down from the First Assistant Engineer list had less continuous service time with Columbia than he did and therefore should not be senior to him on the Second Assistant Engineer list. Timothy Mohler, MEBA's vice president, responded to each of Deringer's letters with letters explaining the operation of the seniority system in the context of a reduction in forces. Specifically, in April of 1980, Mohler stated:

Seniority on the Great Lakes is such that all chiefs are senior to all firsts, all firsts are senior to all seconds and all seconds are senior to all thirds. In this case, there was a fleet reduction which resulted in the two men in question being moved from the bottom of the firsts list to the top of the seconds list. This is entirely in line with the contract and the Lakes-wide system of seniority.

On the June 1980 seniority list for Second Assistant Engineers, Deringer again was bumped down by two persons who were moved from the bottom of the First Assistant Engineer list to the top of the Second Assistant Engineer list. Later in the summer of 1980, Columbia further reduced the number of its vessels in operation, and another engineer was bumped from the First to the Second list. As a result, Deringer was bumped from the bottom position on the Second Assistant Engineer list to the top position on the Third Assistant Engineer list. Plaintiff then filed a grievance with MEBA to protest this latest move. MEBA investigated the complaint, but found that Columbia's practice was consistent with the CBA and Lakes-wide practice. As a result, MEBA determined Deringer's grievance was without merit and withdrew it from the grievance process. Deringer bases his hybrid Sec. 301/unfair representation suit on Columbia's construction of its seniority lists and on MEBA's refusal further to pursue his grievance.

MEBA had organized employees at approximately twenty other shipping companies operating on the Great Lakes prior to organizing the employees at Columbia in 1966. Since 1956, employers and MEBA have conducted contract negotiations on a pattern basis. MEBA first negotiates a contract with the "big three" steel company shippers (U.S. Steel, Bethlehem Steel, and Inland Steel), and this contract serves as the contract pattern for independent companies. Contract negotiations with the independent companies are limited to peculiarly local issues. The Columbia contract language regarding placement on seniority lists, which is at issue in this case, is the same as in all of MEBA's contracts with Great Lakes shipping companies.

The position of each Employee in each [seniority] list will be determined by his length of service in the particular rating.

When vacancies occur, and a Licensed Officer's progression from one rating list to the next higher shall be from the top of his immediate list to the bottom of the next higher rating list.

Article XIV, Sec. 2. Likewise, all the companies' contracts contained the same language regarding decreases in forces:

(a) Whenever forces are decreased the following factors as listed below shall be considered; however, only when both factors A and B are relatively equal between eligible Employees shall length of continuous service be the determining factor.

A. Ability to perform the work.

B. Physical fitness.

C. Appropriate license for rating.

D. Continuous service.

Article XIV, Sec. 9. No provision of the CBA, however, specifically expresses how Sec. 9 should be applied or how Sec. 9's "continuous service" provision may be harmonized with the "length of service in the particular rating" requirement of Sec. 2.

II. Right to Jury Trial

Deringer filed a request for a jury trial with respect to his cause of action; it was denied based on the Supreme Court's language in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), and DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The district court reasoned that the relief requested by Deringer was equitable in nature; and that in light of the complex federal statutory schemes underlying labor law, federal labor policy would not be furthered by jury trial of hybrid Sec. 301 claims. On appeal, Deringer argues that the district court committed reversible error when it denied his request. We have not had occasion to address the seventh amendment right to jury trial in a hybrid Sec. 301 suit previously. Without establishing a per se rule for all such hybrid Sec. 301 suits, in the particular circumstances of this case, we conclude that the district court's denial of Deringer's request for a jury trial was proper, at least with regard to the fair representation issue.

The right to jury trial is preserved constitutionally in "Suits at common law, where the value in controversy shall exceed twenty dollars." This seventh amendment guaranty of a right to jury trial applies in an action to enforce a statutory right "if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974). Applicability of the seventh amendment, however, depends on "the nature of the issue to be tried rather than the character of the overall action." Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970) (footnote omitted). Thus, for purposes of the instant case, it is the characterization of the individual issues subsumed within a hybrid Sec. 301 action that matters, not the characterization of the overall action. Wood v. International Brotherhood of Teamsters, 807 F.2d 493, 505 n. 1 (6th Cir.1986) (Contie, J., concurring), cert. denied, --- U.S. ----, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987). In determining the "legal" nature of an issue, a court should consider (1) the premerger custom with reference to such questions, (2) the remedy sought, and (3) the practical abilities and limitations of juries. Ross, 396 U.S. at 538 n. 10, 90 S.Ct. at 738 n. 10. We have held that the factor regarding the nature of the relief sought should be the chief focus in resolving a seventh amendment question. Hildebrand v. Board of Trustees of Michigan State University, 607 F.2d 705, 708 (6th Cir.1979), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982).

Other courts that have considered the jury trial question in the context of Sec. 301 and/or unfair representation suits have reached various results. See, e.g., Leach v. Pan American World Airways, 842 F.2d 285 (11th Cir.1988) (finding no right to jury trial on fair representation claim; rejecting continued viability of Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir.1979); Quinn v. DiGiulian, 739 F.2d 637 (D.C.Cir.1984) (finding right to jury trial on fair representation claim; Minnis v. UAW, 531 F.2d 850 (8th Cir.1975) (finding right to jury trial on fair representation claim). We find none of these cases, however, controlling under the circumstances of this case. ² The district courts in this circuit also have disagreed on the issue. Compare Chrysler Workers Ass'n v. Chrysler Corp., 663 F.Supp. 1134 (N.D.Ohio 1986) (finding no right to jury trial in hybrid Sec. 301 suit), aff'd, 834 F.2d 573 (6th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2017, 100 L.Ed.2d 604 (19...