Smith v. BABCOCK & WILCOX CO., ETC.

• Decision Date: 29 September 1982
• Docket Number: Civ. A. No. CV181-182.
• Citation: 549 F. Supp. 190
• Parties: Melvin SMITH, Plaintiff, v. BABCOCK & WILCOX COMPANY, REFRACTORIES DIVISION, AUGUSTA, GEORGIA, First Defendant, v. INDUSTRIAL MAINTENANCE AND PRODUCTION WORKERS LOCAL UNION NO. 1137, Second Defendant.
• Court: U.S. District Court — Southern District of Georgia

549 F. Supp. 190

Melvin SMITH, Plaintiff, v. BABCOCK & WILCOX COMPANY, REFRACTORIES DIVISION, AUGUSTA, GEORGIA, First Defendant, v. INDUSTRIAL MAINTENANCE AND PRODUCTION WORKERS LOCAL UNION NO. 1137, Second Defendant.

Civ. A. No. CV181-182.

United States District Court, S.D. Georgia, Augusta Division.

September 29, 1982.

Jack L. Cooper, Augusta, Ga., for plaintiff.

Michael C. Garrett, Augusta, Ga., for second defendant.

J. Thomas Kilpatrick, Atlanta, Ga., for first defendant.

ORDER

BOWEN, District Judge.

This is an action under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, for alleged employer violation of a collective bargaining agreement and union breach of its duty of fair representation. Both defendants have submitted motions for summary judgment.

I. UNDISPUTED FACTS

The following facts, viewed in the light most favorable to the plaintiff, emerge as uncontested. On September 14, 1978, defendant Babcock & Wilcox Company of Augusta, Georgia, (Babcock), entered into a three year collective bargaining agreement with defendant Industrial Maintenance and Production Workers, Local No. 1137 (union). Plaintiff Smith was a member of the union. As of March 24, 1980, he had been employed by Babcock for over seven years as a cleanup man. He had a good work history. On March 24, 1980, the plaintiff was late in reporting to work. A heated argument ensued between Smith and his foreman. As a result of the argument, Babcock discharged Smith. The plaintiff reported his discharge to the union and the union filed a grievance against Babcock. Smith was reinstated on April 8, 1980, but he was assigned to a different job. As a result, the union requested arbitration. An arbitration hearing was held on November 10, 1980. On March 13, 1981, the arbitrator issued his decision, requiring Babcock immediately to reinstate Smith to his former position. Babcock then notified the union that Smith's job had been merged into another and that Smith therefore could not be reinstated in his former position. Babcock requested the union to resubmit to arbitration the issue of what job Smith should be given. On March 17, 1981, the plaintiff began to picket the union, carrying a sign stating "Union Unfair to Union Member." On March 27, 1981, the trial board of the union met and recommended expulsion of Smith because of his picketing. On April 7, 1981, the union membership voted to expel Smith from the union. The union filed suit on May 11, 1981, in this Court to enforce the arbitrator's award of March 13, 1981.¹ On August 6, 1981, Smith filed this lawsuit.

II. THE UNION

Plaintiff makes the following allegations concerning the defendant union:

plaintiff complained of the second defendant's inaction and refusal to follow up on the grievance procedure of this plaintiff and finally, in desperation, picketed the second defendant to secure some sort of relief.

13. That as a result of the picketing by the plaintiff of the second defendant, he was dismissed from the labor union, which was a violation of his right of freedom of speech.

* * * * * *

18. That because of the fact that the plaintiff has been removed from the union by the second defendant, they cannot effectively represent him in any arbitration proceeding and he was without effective relief through these proceedings.

On deposition, Smith was asked the basis for his suit against the union:

Q. ... Then with respect to your allegations in this lawsuit that the union didn't represent you ...

A. Properly.

Q. ... that's what you're talking about.

A. I'm saying that the union didn't represent me properly. There's a difference between representing and representing properly.

Q. Absolutely. You're saying then that the union took too long in the arbitration procedure and the grievance procedure, that they told you that you didn't have a strong case.

A. Right. And did not represent me properly ....

Q. All right. In what way should they have represented you that they did not?

A. As I stated once before, that the union refused to get a restraining order against Babcock and Wilcox to refrain Babcock and Wilcox putting me on the keel sic. The union kept discouraging me saying that Babcock and Wilcox was in the right and saying that if they take it to arbitration that Babcock and Wilcox was going to win ....

* * * * * *

Q. Now, I think in your lawsuit, you also say in paragraph 13 that you were dismissed from the labor union, which was a violation of your right to freedom of speech.

A. Not only I'm saying it's a violation of my right of freedom of speech, I'm saying that the union constitution states that only two ways that you can put somebody out of the union and the two ways the union constitution speaks of is one, for not paying union dues and two, is worthless slandering the union. And I asked the business manager did he know what worthless slandering the union was. And he cannot tell me. And I have to tell that worthless slandering the union was worthless lying against the union. And there's no way in the newspaper print that I worthless lied against the union.

(p. 70, In. 1-13, p. 71, In. 17-25, p. 72, In. 8-24).

Under sections 8(b) and 9(a) of the NLRA, 29 U.S.C. §§ 158(b), 159(a), a union, as the exclusive bargaining representative of its member employees, has a "statutory duty fairly to represent all of those employees...." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967) (citing, inter alia, Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)); see Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1125 (5th Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). This duty extends to all union dealings with the employer, not simply to matters pertaining to a collective bargaining agreement. In re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). The duty does not extend, however, to union conduct affecting an individual's relationship within the union structure. Bass v. International Brotherhood of Boilermakers, 630 F.2d 1058 (5th Cir. 1980). In this case it is apparent that plaintiff is proceeding against the union both on the theory that the union breached its duty of fair representation under the collective bargaining agreement and that the union violated his civil rights by expelling him from the union. Only plaintiff's fair representation claim will be addressed since it is uncontested that this action is brought pursuant to section 301 of the LMRA, and plaintiff's claim concerning his expulsion from the union is not cognizable as an independent claim under that statute. Id.

In regard to plaintiff's fair representation claim, a careful review of the record in this case reveals that such record is devoid of any evidence to support a finding that plaintiff's grievance was processed discriminatorily, arbitrarily or in bad faith. See Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). The grievance was filed the day after the incident occurred. The plaintiff was reinstated within two weeks and during the pendency of arbitration was employed with no loss of seniority or reduction in pay. The plaintiff has introduced no evidence showing that the union did not properly present his case before the arbitrator. Plaintiff complains that the union attempted to discourage him from pursuing his claim. Plaintiff, however, did not abandon his claim and absent some showing that the union did not adequately present the claim at hearing, its reticence in pursuing the cause initially is not pertinent. It must be emphasized that the arbitrator's decision of March 13, 1981, was favorable to the plaintiff. Moreover, when the arbitrator's award was not implemented, the union filed suit to enforce the award.

The plaintiff points to the fact that there was a delay of perhaps as much as six months in processing his claim. According to the plaintiff, he was told that twelve weeks of that delay was attributable to the union's unpreparedness. The deposition of W.C. Bohling indicates that the union-caused delay could have been as long as six months. This alone will not support a claim for failure to fairly represent. There must be "substantial evidence of fraud, deceitful action or dishonest conduct" in order to prevail against the union. Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1970); see Coe v. United Rubber, Cork, Linoleum and Plastic Workers of America, 571 F.2d 1349, 1351 (5th Cir. 1978). Mere carelessness, inadvertence, negligence, or poor judgment in processing plaintiff's claim will not support an action against the union. Coe, 571 F.2d at 1350-51. Standing alone, the fact that the union's lack of preparation may have caused a delay of six months in processing the claim does not indicate fraud, deceitful action or dishonest conduct.

Nor does the fact that the union did not seek an injunction when the plaintiff was assigned to work on the kiln show arbitrariness, bad faith, or discriminatory intent. Plaintiff's job assignment involved no loss of pay or seniority. It was in the same department where his former job had been. The plaintiff was offered several jobs during the pendency of the claim that did not involve work on the kiln or reduction of salary. During this time the union was continuing to work toward reinstatement of the plaintiff in his original position. There has been no allegation by the plaintiff that the union would have or had sought injunctive relief for other members in the same or similar circumstances. An injunction is an extreme remedy. The union was pursuing the remedies set out in the collective bargaining agreement. Its failure to seek injunctive relief will not support an action for failure to represent Smith fairly.

It is noted that there is some reference in the record to the delay which occurred in resubmitting plaintiffs' grievance to the...