Baskin v. Tennessee Valley Authority, No. 74-166-NA-CV.

• Court: United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
• Writing for the Court: MORTON
• Citation: 382 F. Supp. 641
• Parties: Fred E. BASKIN, Jr., et al., Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Docket Number: No. 74-166-NA-CV.
• Decision Date: 04 September 1974

382 F. Supp. 641

Fred E. BASKIN, Jr., et al., Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY, Defendant.

No. 74-166-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

September 4, 1974.

382 F. Supp. 642

Stanley H. Sidicane, Nashville, Tenn., for plaintiffs.

Robert H. Marquis, Gen. Counsel, Beauchamp E. Brogan, Associate Gen. Counsel, Chas. A. Wagner, Atty., Tennessee Valley Authority, Knoxville, Tenn., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MORTON, District Judge.

This action was filed on April 12, 1974, by 43 named plaintiffs, on behalf of themselves and others similarly situated, who were fired from their jobs at the Tennessee Valley Authority's (TVA) Cumberland Steam Plant in November and December of 1971, because of a work stoppage which occurred on October 21, 1971. The complaint was later

382 F. Supp. 643

amended to add 22 additional plaintiffs. The essence of plaintiffs' claim is that TVA's action in terminating them because of their participation in the work stoppage was arbitrary, capricious, and an abuse of discretion. Plaintiffs also seek to set aside the findings of a joint committee, established in accordance with the controlling labor agreement to investigate the work stoppage, as well as the action of TVA based on such findings, and to have plaintiffs reinstated to their former jobs with back pay and benefits as of their last pay period in 1971. The case is before the Court on TVA's motion to dismiss or for summary judgment. TVA contends that (1) plaintiffs' delay of over 27 months in bringing this action constitutes laches which bars the suit; (2) the veteran preference eligible plaintiffs who failed to exhaust their administrative remedies cannot invoke the jurisdiction of this Court; and (3) the nonpreference eligible plaintiffs were properly discharged and the Court cannot review the merits of their termination

It appears to the Court from the pleadings, affidavits, briefs and arguments of counsel that there is no genuine issue as to any material fact and that TVA is accordingly entitled to judgment as a matter of law, in accordance with the findings and conclusions set forth below.

Findings of Fact

1. On October 21, 1971, the electrical workers at TVA's Cumberland Steam Plant left their assigned places of work in violation of the terms of the General Agreement between TVA and the Tennessee Valley Trades and Labor Council (Council). The Council is the official negotiating representative for all TVA trades and labor employees and is comprised of 16 unions, including the International Brotherhood of Electrical Workers, which is, and was at the time of the work stoppage in question, the accredited representative of plaintiffs. The General Agreement and the Supplementary Schedules, which are a part thereof, governed all phases of plaintiffs' employment with TVA.

2. Article II-3 of the General Agreement provides that "The Council and its member organizations will not permit their members to engage in work stoppages . . . ." The procedure for handling work stoppages in violation of the General Agreement is set forth in Supplementary Schedule H-XXIII, which provides in pertinent part:

H-XXIII. Employees Leaving Work in Violation of Article II of General Agreement

. . . TVA and the Council have considered the problems occasionally caused by groups of men leaving work in violation of Article II of the General Agreement. Such incidents are unjustified because every problem can be handled under that agreement. Both parties are expected to abide by it and to correct any mistakes under it as soon as discovered.

TVA and the Council will handle jointly any incidents of this kind. . . . The Council and TVA each will appoint members to serve on a joint committee. . . .

The committee will attempt to (1) determine the cause of the action, (2) determine who was primarily responsible for the action, (3) determine whether and under what condition the employees may return to work, (4) determine what statement if any of the action shall be placed in the employees' personal history record, and (5) decide on appropriate action against individuals found to have participated in instigating the action or who failed in their responsibility to attempt to prevent the action.

The decision of the joint committee is final.¹

3. Following the work stoppage on October 21, 1971, a joint committee comprised of representatives appointed by both TVA and the Council was formed,

382 F. Supp. 644

in accordance with the procedures set out above, to investigate the incident and decide what course of action should be taken. The committee personally interviewed 325 men — all those who were involved, or suspected of being involved, in the work stoppage who made themselves available for interviews

4. After its investigation, the committee, on December 7, 1971, filed its report in which it concluded that 151 electrical workers, which includes plaintiffs, should be terminated because of their involvement in the illegal work stoppage. Such report included all determinations required under the General Agreement and was in full accord with Supplementary Schedule H-XXIII. Under the terms of the General Agreement, the decision of the joint committee was final and thus binding on both TVA and the Council including the union representing plaintiffs. Accordingly, all 151 electrical workers were terminated, effective in either November or December 1971, depending upon their classification.

5. Twenty-six (26) of the electricians were veterans entitled to the benefits of the Veterans' Preference Act (5 U.S.C. §§ 7511, 7512 (1970)), and they were terminated pursuant to the provisions of that act. All other electricians (125) were terminated in accordance with the terms of the General Agreement. It is undisputed that the procedures applied in the termination of each class of employees were as follows:

Veterans. The Veterans' Preference Act was applied to all 26 of the veterans who had completed one year of current continuous service with TVA. Such preference eligible veterans were terminated pursuant to the provisions of 5 C. F.R. part 752, which sets forth the procedures for terminating them under the Veterans' Preference Act. These veterans also had the right to appeal their termination to the United States Civil Service Commission (5 C.F.R. part 772). Only 14 of the 26 veteran preference eligibles exercised their appeal rights. Of the 14, only 10 exhausted their administrative appeal rights by appealing to the Board of Appeals and Review, which ordered the 10 reinstated because of certain procedural irregularities. The 4 others failed to appeal to the Board, and their termination thus became final in December 1971. The remaining 12 preference eligibles, all of whom had the right to appeal their termination to the United States Civil Service Commission pursuant to 5 C.F.R. part 772, did not exhaust or even exercise their administrative remedies, and their terminations became final in December 1971 after the running of the time for an appeal. None of the 10 veterans who appealed their terminations to the Board of Appeals and Review are listed as plaintiffs in this action.

The determination by the commission with respect to the 10 veterans who exhausted their administrative remedies, that TVA had failed to comply with all procedural requirements in terminating them, has no bearing on the question of whether the other veterans can now invoke the jurisdiction of the Court. Their voluntary failure to further exhaust their appeal rights bars them from raising any issue with respect to their termination.

Nonpreference Eligibles. The remaining plaintiffs (nonveterans, and veterans who had not completed one year of current continuous TVA service) were terminated in accordance with the terms of the General Agreement between TVA and the Council, which sets forth the procedure for terminating nonpreference eligible employees. Supplementary Schedule H-VII.A provides:

A. Termination or Demotion for Cause

An hourly employee whose termination or demotion is proposed is removed from work and pay status by issuance of form 77. The reasons for the proposed termination or demotion and the analysis of work performance are stated on the form and shall be discussed with the employee by his foreman. If the employee so requests, completion of the proposed action is

382 F. Supp. 645

delayed for 48 hours to permit him to give notice of appeal. If the employee does not appeal within 10 days, the action is final.

This procedure was fully complied with by TVA in implementing the termination of the nonpreference eligible plaintiffs. These employees had no administrative appeal rights, and their terminations became final on November 16, 1971, in accordance with the terms of the General Agreement.

6. The plaintiffs' delay of over 27 months in bringing this action seeking reinstatement and retroactive pay prejudiced TVA. Plaintiffs seek reinstatement and back pay for over 27 months on behalf of 141 electrical workers, who were making from $6 to $7 an hour when terminated. As a result of the work stoppage and subsequent termination of plaintiffs, TVA hired other workers to replace them to do the work plaintiffs would have performed. Plaintiffs' claim, if allowed, could result in duplicate salaries and back pay from November or December of 1971 and would result in back pay alone of several million dollars.

7. The record fails to reveal any action on the part of the joint committee which was arbitrary or capricious.

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