Bass v. International Broth. of Boilermakers

• Decision Date: 17 November 1980
• Docket Number: No. 582,No. 79-1462,582,79-1462
• Citation: 630 F.2d 1058
• Parties: 105 L.R.R.M. (BNA) 3258, 90 Lab.Cas. P 12,405 Don Lee BASS and Jerome Clarence Fernandez, Plaintiffs-Appellees Cross Appellants, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, etc., Local, et al., Defendants-Appellants Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1058

630 F.2d 1058

105 L.R.R.M. (BNA) 3258, 90 Lab.Cas. P 12,405

Don Lee BASS and Jerome Clarence Fernandez Plaintiffs-Appellees Cross Appellants, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, etc., Local No 582, et al., Defendants-Appellants Cross Appellees.

No. 79-1462.

United States Court of Appeals Fifth Circuit.

Nov. 17, 1980.

Louis L. Robein, Jr., New Orleans, La., for defendants appellants cross appellees.

J. Arthur Smith, III, Baton Rouge, La., for plaintiffs-appellees cross appellants.

Appeals from the United States District Court for the Middle District of Louisiana.

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Apprentices enrolled in an apprenticeship training program set up under the provisions of the Labor Management Relations Act obtained a jury verdict for damages against the union participating in the program and the apprenticeship committee managing it on the ground that they were improperly expelled. The union and the committee assert errors in the jury charges and the committee contends that it was not subject to the court's jurisdiction. Finding no prejudicial error in the jury charges, we affirm the judgment against the union. However, because the plaintiffs have failed to establish a basis for federal jurisdiction against the apprenticeship committee, we dismiss the claims against it.

I.

In May 1976, Don Lee Bass, who had for several years been a member of Local 582, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, and Jerome Clarence Fernandez, who had then recently applied for union membership but who had not been formally accepted, were participants in the regional boilermaker apprenticeship program administered by the South Central Area Apprenticeship Committee (SCAAC). SCAAC is a trust fund, financed by employer contributions made pursuant to a provision in the collective bargaining agreement in force between the union and employers in the states of Texas, Louisiana, New Mexico, Oklahoma and Arkansas. Its managing committee is composed of persons designated in equal numbers by the employers and the union. ¹

The apprenticeship program consists of correspondence and classroom instruction, periodic testing and work on the job as an apprentice. As part of their work training, Bass and Fernandez, each of whom lived in Baton Rouge, Louisiana, were assigned by the Local's business manager to a union job at Papco, a paper plant in Bastrop, Louisiana, almost 200 miles from their homes.

Construed most favorably to them, as the jury verdict in their favor now requires, what then happened is as follows. After working in Bastrop a few weeks, both Bass and Fernandez asked the union steward at Papco whether they could be laid off so they might be assigned to a jobsite nearer their homes. The union steward subsequently informed them that he had made appropriate arrangements: they should return to their homes and then report to the Baton Rouge hiring hall the following week. With this understanding, Bass and Fernandez left work, returned home and duly reported to the hiring hall. When they arrived at the hall, however, the local's business manager told them that their absence from the Bastrop job was unauthorized and they had, therefore, been terminated from the apprenticeship program and automatically expelled from the union.

Although Bass and Fernandez sought union help to correct the situation, they could get no remedial action. They then filed an action, seeking a jury trial, against Local 582 in the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. Defendants removed the suit to the United States District Court. After removal, plaintiffs amended the complaint, and joined SCAAC as a defendant. At the conclusion of a jury trial, a verdict was returned against Local 582 and SCAAC. Both the union and SCAAC appeal, asserting separate bases for their efforts to overturn the verdict. We consider first the issues relating to the union.

II.

If Bass and Fernandez were union members, the union owed them special duties, created both by the union constitution and by statute. The union stipulated that Bass was a member, but contended that Fernandez had not yet been accepted. The district judge, therefore, submitted to the jury the question whether Fernandez had become a member.

Fernandez had applied for union membership, but the union contended that he had not satisfied other membership requirements. During a portion of his instruction on Fernandez's membership status, the district judge read the union security clause ² contained in the Collective Bargaining Agreement then in force. That clause required all employees to "be or become members of the union" seven days after the date of their employment. ³ The security clause does not, of its own force, result in union membership; the employee might refuse to tender dues and subject himself to discharge. The clause neither compels an employee to participate actively in the union nor requires a union to accept the employee. ⁴ Several of the union's witnesses testified that, before the employee became a union member, certain requirements precedent to union membership were required. ⁵

The union submitted no request for a special charge on the effect of the union security clause. After the jury instructions were completed, however, the union objected to the unqualified reading of the security clause on the ground that it gave a misleading impression of the law and of the basis for determining whether in fact an employee had become a union member, by implying that Fernandez became a union member seven days after he commenced employment.

The standard for assessing a jury charge is not academic perfection. The trial judge is not bound to parrot either counsel or appellate courts. As we have repeatedly stated, his wide discretion permits him to select his own words and to charge in his own style. Smith v. Borg-Warner Corp., 626 F.2d 384 (5th Cir. 1980); Baker & Co. v. Preferred Risk Mutual Insurance Co., 569 F.2d 1347 (5th Cir. 1978); Coughlin v. Capital Cement Co., 571 F.2d 290, 300 (5th Cir. 1978). Provided only that he communicates the substance of the law correctly, appellate courts do not monitor his phrases. Only if the trial judge's instructions to the jury, taken as a whole, give a misleading impression or inadequate understanding of the law and the issues to be resolved, is a new trial required. Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970); Gordon Mailloux Enterprises, Inc. v. Firemen's Insurance Company, 366 F.2d 740 (9th Cir. 1966).

The trial judge did not merely read the union security clause. He covered the provisions of the union constitution and bylaws, including those portions imposing conditions precedent to union membership. He adequately informed the jury that it was required to decide whether Fernandez was a union member and he submitted a special interrogatory on the question. ⁶ The union security clause was not irrelevant; the existence of the duty of an apprentice to join the union was of evidentiary value in appraising the testimony concerning whether he had properly applied for membership, whether he had complied with the union's requirements and whether the union did or did not exact literal fulfillment of its constitutional provisions.

Considering the jury charge concerning union membership as a whole, we fail to perceive in it reversible error. Taken in its entirety, it gave a reasonable summary of applicable legal principles and put the issue of Fernandez' union membership fairly to the jury. Therefore, we affirm the jury verdict finding that Fernandez was a union member.

III.

One of the principal allegations asserted by Bass and Fernandez in their complaint was breach of the union's duty of fair representation (DFR) by their summary expulsion from the apprenticeship program and the union. The instructions that were given are challenged on the basis that they dwelt on such a duty and that the union, under the circumstances complained of, did not owe the DFR to Bass and Fernandez. Carefully read, however, the jury charge properly distinguished among the duties the union owes its members, the duty the union owes persons in the apprenticeship program and the duty due persons whom it represents in collective bargaining.

Sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. §§ 158(b), 159(a), empower a union that represents a majority of the employees in an appropriate bargaining unit to act as the exclusive representative of all the employees in collective bargaining. Because the union acts as agent of all the employees, it owes each of them, whether or not a union member, the duty of fair representation. Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973); see also In re Carter, 618 F.2d 1093 (5th Cir. 1980). The scope of this duty was outlined in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842, 850 (1967). The Supreme Court there held that, when a union acts as the collective bargaining agent of its members, it is obliged "to secure the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct." Id. at 177, 87 S.Ct. at 910, 17 L.Ed. at 850.

The existence of the DFR, however, does not permit federal court scrutiny of all of a union's internal affairs. Because the DFR is imposed on the union as a result of its position as exclusive bargaining representative, it applies only to union conduct arising from the union's position as representative. Thus, in Smith v. Local No. 25, Sheet Metal Workers, 500 F.2d 741, 746 (5th Cir. 1974), we stated that the union owes "the duty to represent fairly the interest of each employee in the unit in dealings with the employer." (Emphasis supplied.) Therefore, union conduct that...