Ball v. Eastern Coal Corp.

• Decision Date: 24 March 1967
• Citation: 415 S.W.2d 620
• Parties: George Lester BALL et al., Appellants, v. EASTERN COAL CORPORATION et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 620

415 S.W.2d 620

George Lester BALL et al., Appellants, v. EASTERN COAL CORPORATION et al., Appellees.

Court of Appeals of Kentucky.

March 24, 1967.

Rehearing Denied June 30, 1967.

Jean L. Auxier, Pikeville, Abishi C. Cunningham, Welch, W. Va., for appellants.

Julius Rather, Lexington, John M. Stephens, Stephens & Combs, Pikeville, Bert T. Combs, Lexington, George Richardson, Jr., Richardson & Hancock, Bluefield, W. Va., Albert S. Kemper, Jr., Bluefield, W. Va., for appellees Eastern Coal Corp.

Grant F. Knuckles, Pineville J. Ervin Sanders, Pikeville, Sanders & Redwine, Harrison Combs, Washington, D.C., M. E. Boiarsky, Charleston, W. Va., H. B. Noble, Hazard, for appellees United Mine Workers.

PALMORE, Judge.

Appellants, 177 former employes of the appellee Eastern Coal Corporation (hereinafter Eastern), brought this suit for damages against Eastern and the appellee United Mine Workers of America (hereinafter UMW, or the union) claiming they were discharged in violation of their seniority rights under the National Bituminous Coal Wage Agreement of 1950, as amended, to which contract Eastern and UMW, as collective bargaining agent for its members, were parties. ¹ After development of the dispositive facts through appropriate pleadings, stipulations and pretrial conference the trial court made findings of facts and conclusions of law and entered a summary judgment denying relief and dismissing the action on the merits.

In 1953 Eastern was operating coal mines in Pike County, including its Nos. 4, 8 and 7. Nos. 4 and 8 were connected by a trestle and operated as a single unit, all of the coal from both openings being processed through a central cleaning plant and tipple at the No. 8 entry. No. 7 was located some two miles away and had its own tipple. Employes at Nos. 4 and 8 belonged to the UMW Local 5737. Those at No. 7 belonged to Local 5729.

On May 17, 1953, Eastern completed an underground haulway connecting Nos. 7 and 8, abandoned its tipple at No. 7, and began transporting coal from No. 7 through the underground haulway and processing it through the central cleaning plant and tipple at No. 8. Since the UMW constitution provides that no mine shall be under the jurisdiction of more than one of its local unions, on June 16, 1953, District 17 of the union dissolved Local 5729 and transferred its members to Local 5737.

During the next several months Eastern laid off a number of the miners, and disputes arose concerning the manner in which seniority was being or should be determined. The employes who had been working at Nos. 4 and 8 prior to the physical consolidation with No. 7 took the position that the employes at No. 7 became 'new men' whose seniority dated from May 17, 1953, in the same manner as employes who had transferred from No. 7 to Nos. 4 and 8 before the consolidation had become 'new men' as of their transfer dates. Evidently this was the approach taken initially by Eastern and the Local Mine Committee of the union, but some of the dissatisfied men appealed to higher authority (District 17) within the union, and on November 2, 1953, the president, vice president and chief field representative of District 17 determined in effect that on May 17, 1953, for purposes of seniority Nos. 4, 8 and 7 had merged into a single mine and that all employes retained their respective seniority dates as of immediately before that event. ² This decision was communicated to the Local Mine Committee by a letter dated November 2, 1953. The Local Mine Committee then took the matter up with Eastern, whereupon Eastern agreed to and did adjust its payroll accordingly. Thereafter, though Eastern continued its separate numerical designations of the various mine entries for the purpose of work assignments and inspection reports, and the union also continued to recognize such separate identities in its correspondence relating to safety inspections, for purposes of payroll and seniority they were and have been treated as one and the same mine.

Reductions in force at Eastern's operations in Pike County culminated in a substantial number of layoffs in March and April of 1954. Appellants were employes at Nos. 4 and 8 who were discharged pursuant to the payroll seniority plan, but whose names would not have been reached for discharge under their version of the mine seniority plan. In response to their protests Eastern's management advised them that Eastern had to 'go along' with the officers of the local union. A committee representing appellants then requested the Local Mine Committee to file a grievance, but the Local Mine Committee took the position that no grievance existed and declined to do so. An appeal to District 17 asking that the Local Mine Committee be compelled to present formal grievances resulted in a decision by the executive board of District 17 on May 27, 1955, holding that the controversy had been properly resolved, and thus affirming the decision theretofore made by its officers and communicated to the Local Mine Committee in the aforementioned letter of November 2, 1953.

Being dissatisfied with the action of District 17, the aggrieved employees appealed to UMW, whose president appointed a commission composed of two members of the UMW executive board to make a report and recommendation. On November 16, 1955, the commission reported the facts of the controversy to the president and recommended that the opinion of District 17 be sustained.

On May 16 or 17, 1956, a committee representing the aggrieved employes appeared before the executive board of UMW at Washington, D.C., and was afforded a hearing on its appeal from the report and recommendation of the commission. After such hearing the UMW executive board affirmed the commission's recommendation.

Eastern did not take part in any of the proceedings within the UMW organization.

In this suit the appellants contend that Eastern has breached the contract and UMW has breached its fiduciary duties to them.

More specifically, as we understand it, the osition of appellants is that the merger of the two seniority lists in the manner herein described violated their rights under the contract, that the union's determination of its propriety and Eastern's subsequent acquiescence amounted to an unauthorized amendment of the contract, and that the union's participation in this violation of their contract rights and its refusal to submit their complaint to the grievance procedure set forth in the contract constituted a violation of its fiduciary duty of fair representation as their bargaining agent.

Appellants rely heavily on a principle that in our opinion is no longer the law. That principle, stated and applied in Piercy v. Louisville & N. Ry. Co., 198 Ky. 477, 248 S.W. 1042, 33 A.L.R. 322 (1932), is that a labor union 'is not the agent of the member for the purpose of waiving any personal right he may have, but is only his representative for the limited purpose of securing for him, together with all other members, fair and just wages and good working conditions,' and does not have the authority to adjust or agree to a modification of his seniority rights under a contract between the union and the employer.

This action, though brought in a state court, comes within the ambit of § 301 (a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), ³ and is controlled by federal law. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, 378 (1964). ⁴

In Aeronautical Indus. Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513 (1948), three former employees of Lockheed Aircraft Corporation brought suit against Lockheed challenging the validity, as to them, of an agreement between Lockheed and their union modifying the seniority provisions of a collective bargaining agreement that was in effect when the employes left the company to enter the military service. The right of each employe upon discharge from the service to restoration of his employment without loss of seniority was secured by § 8 of the Selective Training and Service Act of 1940, as amended. The contract modification agreed upon by the union and the employer during their absence in the military service 'provided that 'Union Chairmen who have acquired seniority shall be deemed to have top seniority as long as they remain Chairmen.' In plain English this means that thereafter employees who served as union chairmen were entitled to be retained in case of layoffs regardless of their length of service in the plant.' 337 U.S. at 523--524, 69 S.Ct. at 1288. In upholding the modification the court said:

'It is of the essence of collective bargaining that it is a continuous process. Neither the conditions to which it addresses itself nor the benefits to be secured by it remain static. They are not frozen even by war. * * *

'There are great variations in the use of the seniority principle through collective bargaining bearing on the time when seniority begins, determination of the units subject to the same seniroity, and the consequences which flow from seniority. All these variations disclose limitations upon the dogmatic use of the principle of seniority in the interest of the ultimate aims of collective bargaining. * * *

'To draw from the Selective Service Act an implication that date of employment is the inflexible basis for determining seniority rights as reflected in layoffs is to ignore a vast body of longestablished controlling practices in the process of collective bargaining of which the seniority system to which that Act refers is a part. * * *

'The agreements made by the Union with Lockheed represent familiar developments in the process of collective bargaining which the Selective Service Act presupposes and in the context of which it must be placed. * * *

'Of course, the Selective Service Act restricts a readjustment of seniority rights during the veteran's absence to the disadvantage of the veteran. But it would be an undue restriction of the...