Ames v. Westinghouse Elec. Corp.

• Decision Date: 28 December 1988
• Docket Number: L,No. 88-3281,AFL-CI,I,88-3281
• Citation: 864 F.2d 289
• Parties: 130 L.R.R.M. (BNA) 2230, 110 Lab.Cas. P 10,909 Philip AMES, Appellant v. WESTINGHOUSE ELECTRIC CORPORATION, International Union of Electrical, Radio and Machine Workers,nternational Union of Electrical Radio and Machine Workers,ocal 617, and I.U.E. Westinghouse Conference Board.
• Court: U.S. Court of Appeals — Third Circuit

Page 289

864 F.2d 289

130 L.R.R.M. (BNA) 2230, 110 Lab.Cas. P 10,909

Philip AMES, Appellant v. WESTINGHOUSE ELECTRIC CORPORATION, International Union of Electrical, Radio and Machine Workers, AFL-CIO International Union of Electrical Radio and Machine Workers AFL-CIO, Local 617, and I.U.E. Westinghouse Conference Board.

No. 88-3281.

United States Court of Appeals, Third Circuit.

Argued Sept. 27, 1988.

Decided Dec. 28, 1988.

William G. McConnell (argued), Cusick, Madden, Joyce and McKay, Sharon, Pa., for appellant, Philip Ames.

Theodore Goldberg, Janice Savinis (argued), Henderson & Goldberg, P.C., Pittsburgh, Pa., for appellees, Intern. Union of Elec. Radio and Machine Workers, AFL-CIO; Intern. Union of Elec. Radio and Machine Workers, AFL-CIO, Local 617, and I.U.E. Westinghouse Conference Bd.

Alfred W. Vadnais, Laura A. Candris (argued), Eckert Seamans Cherin & Mellott, Pittsburgh, Pa., for appellee, Westinghouse Elec. Corp.

Before GIBBONS, Chief Judge, SEITZ, Circuit Judge, and POLLAK, District Judge. ^*

OPINION OF THE COURT

GIBBONS, Chief Judge:

Philip Ames, a former employee of Westinghouse Electric Corporation, appeals from a judgment dismissing as moot his hybrid action against Westinghouse and the International Union of Electrical Radio and Machine Workers, AFL-CIO, Local 617 and I.U.E. Westinghouse Conference Board (collectively, the Union). The action charges that Westinghouse breached the collective bargaining agreement applicable to employees at the Westinghouse plant in Sharon, Pennsylvania, and that the Union breached its duty of fair representation by not pursuing a contract grievance arbitration remedy on Ames' behalf. While the action was pending, Westinghouse filed a motion to dismiss supported by a showing that it and the Union had agreed to arbitrate Ames' grievance and that the Sharon plant was now permanently closed. The district court adopted the recommendation of a United States magistrate that these facts rendered Ames' lawsuit moot. Since the court relied on matters outside the pleadings, its ruling is properly regarded as a Fed.R.Civ.P. 56 summary judgment. De Tore v. Local 245, Jersey City Pub. Employees Union, 615 F.2d 980, 983 (3d Cir.1980). Thus our review is plenary. Goodman v. Mead Johnson & Co., 534 F.2d 566, 577 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). We will affirm the dismissal of the action against Westinghouse, but reverse the dismissal against the Union, and remand for further proceedings.

I.

From the materials in the summary judgment record a factfinder could find that Ames had been employed by Westinghouse at the Sharon plant for twenty-three years when, on November 15, 1983, he received notice that he would be laid off at year's end. During his entire employment, Ames' collective bargaining representative was the Union, which had a collective bargaining agreement with Westinghouse. That agreement contains a typical grievance arbitration clause. When, in the fall of 1983, impending layoffs were announced, Ames placed a bid for a job as a screw machine operator, then held by a member of the bargaining unit, Robert Jones. Jones had four months less seniority than Ames. Under the terms of the collective bargaining agreement, if Ames was designated by a supervisor as qualified for a job, his seniority afforded him the right of first refusal for it in preference over an employee with less seniority.

Ames was discouraged by the Westinghouse Personnel Department from pursuing his bid for Jones' screw machine job because the job was going to be eliminated in a couple of weeks. He was told by the Union president not to bother because Jones was a friend of the supervisor who would have to pass on Ames' qualifications, and thus Jones would be protected. Ames was laid off at the end of 1983.

Over a year later Ames heard a rumor that Jones had continued to work at the Sharon plant until that plant permanently closed. Ames asked a Union steward to inquire if this was so and, in March of 1985, received a letter confirming that Jones had indeed continued to work as a screw machine operator. He asked the Union steward to investigate on his behalf, and thereafter spoke with various Union officials who assured him they would follow up. While Ames never explicitly requested that the Union file a grievance, he thought that such a request was implicit in his demand for Union assistance.

His efforts to have the Union act on his behalf were unavailing and, on September 9, 1985, Ames filed a complaint under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. Sec. 185(a) (1982), and section 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 412 (1982). The complaint alleges that, by continuing to employ Jones after laying off Ames, Westinghouse violated the collective bargaining agreement, and that by failing to pursue Ames' grievance over the violation of the contract the Union breached its duty of fair representation. The complaint seeks damages in the amount of lost wages and benefits, attorneys' fees, and punitive damages.

After fairly extensive discovery, Westinghouse and the Union agreed to arbitrate Ames' grievance. When the district court was so advised, it requested a report and recommendation on Westinghouse's motion to dismiss the case as moot. The magistrate pointed out, and Ames does not dispute, that since the Sharon plant is permanently closed the grievance cannot recur. The magistrate also pointed out that in the arbitration Ames can be made whole for any breach of the collective bargaining agreement. Thus, the magistrate reasoned, the entire case was moot. The district court adopted the report and recommendation of the magistrate and dismissed the complaint. This appeal followed.

II.

An action becomes moot when "(1) there is no reasonable expectation that the alleged events will recur ... and (2) interim relief or events have completely eradicated the effects of the violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)) (citations omitted). Ames does not dispute that the permanent closing of the Sharon plant makes future violations impossible. He does dispute, however, the district court's holding that the arbitration of his claim will irrevocably eradicate the effects of the breaches of contract and of the duty of fair representation. The potential liability of Westinghouse and of the Union require separate analysis.

A. Westinghouse

Ames' claim against Westinghouse arises under section 301 of the Labor Management Relations Act of 1947, which authorizes suits in the district court for "violation of contracts between an employer and an organization representing employees." 29 U.S.C. Sec. 185 (1982). Although the statutory language does not provide expressly for suits by individual employees to enforce collective bargaining agreements, it has long been settled that such suits are authorized by section 301 so long as the collective bargaining agreement does not otherwise provide. E.g., Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). If, however, the collective bargaining agreement contains procedures for the settlement of disputes through grievance and arbitration, these contractual remedies are binding on individual employees, and their section 301 suits must be dismissed if those remedies have not been exhausted. E.g., Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The exhaustion-of-contract remedies rule is in turn limited by the exception that if a union, in breach of its duty of fair representation, fails to process the employee's claim through the contract dispute resolution process, the employee can bring a hybrid section 301 action against both the employer and the union. E.g., Bowen v. United States Postal Serv., 459 U.S. 212, 221-22, 103 S.Ct. 588, 594-95, 74 L.Ed.2d 402 (1983); Vaca v. Sipes, 386 U.S. 171, 183-89, 87 S.Ct. 903, 913-16, 17 L.Ed.2d 842 (1967). Otherwise the union's default would leave the employee without a remedy for breach of a collective bargaining agreement of which the employee was the beneficiary. Moreover, even if the employee's claim is presented in the grievance arbitration forum, the union's bad faith handling of the claim may so taint the outcome in that forum that a section 301 suit by the employee can still be entertained. See, e.g., Humphrey v. Moore, 375 U.S. 335, 348-51, 84 S.Ct. 363, 371-73, 11 L.Ed.2d 370 (1964). When either form of breach of the duty of fair representation has occurred, the employee is entitled to an appropriate remedy against the employer, as well as the union. E.g.,...