Bieski v. Eastern Automobile Forwarding Company

• Decision Date: 29 December 1965
• Docket Number: No. 15083.,15083.
• Citation: 354 F.2d 414
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Lawrence E. BIESKI, Jesse Colpo and Edward W. Keefer, Individually and as Representatives of a Class, Appellants, v. EASTERN AUTOMOBILE FORWARDING COMPANY, Inc., M & G Convoy, Inc., and Highway Truck Drivers and Helpers, Local 107, an Unincorporated Association Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

354 F.2d 414 (1965)

Lawrence E. BIESKI, Jesse Colpo and Edward W. Keefer, Individually and as Representatives of a Class, Appellants, v. EASTERN AUTOMOBILE FORWARDING COMPANY, Inc., M & G Convoy, Inc., and Highway Truck Drivers and Helpers, Local 107, an Unincorporated Association Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

No. 15083.

United States Court of Appeals Third Circuit.

Argued April 8, 1965.

Reargued December 2, 1965.

Decided December 29, 1965.

Marshall J. Seidman, Edward B. Bergman, Philadelphia, Pa. (Seidman & Rome, Solo, Bergman & Trommer, Philadelphia, Pa., on the brief), for appellants.

Joseph T. Walsh, Wilmington, Del. (George S. Dixon, Robert Alan Parr, Matheson, Dixon & Bieneman, Detroit, Mich., on the brief), for appellees M & G Convoy, Inc. and Eastern Automobile Forwarding Co., Inc.

Richard H. Markowitz, Richard Kirschner, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., Marshall J. Seidman, Philadelphia, Pa., (on reargument), for appellee Union.

Hugh J. Beins, Washington, D. C., for intervenor Eastern Conference Automobile Transporters Joint Committee.

Alvin M. Chanin, Philadelphia, Pa., for intervenors Joseph Sockolosky, Adam Dorosky and William Greenly.

Before GANEY and FREEDMAN, Circuit Judges, and KIRKPATRICK, District Judge.

FREEDMAN, Circuit Judge.

Plaintiffs, three truck drivers formerly employed by Eastern Automobile Forwarding Company, Inc., brought this action for themselves and on behalf of 52 other truck drivers of Eastern under § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), authorizing suits to be brought in the district courts for "violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce".

Eastern and M & G Convoy, Inc., were each engaged in the business of hauling new automobiles. Their business which is relevant here was the hauling of new automobiles from Chrysler Corporation's assembly plant at Newark, Delaware, to various retail dealers. Eastern's territory for these shipments was within New Jersey and New York, and M & G's was in eastern Pennsylvania and parts of New England and New York. The individual delivery points within the areas were designated and assigned by the manufacturer.

In January of 1964, pursuant to a written agreement, Eastern sold to M & G all its real estate and substantially all of its operating equipment. Not included in the sale were Eastern's Interstate Commerce Commission operating certificate, licenses, good will, accounts receivable and cash. It is agreed by the parties that regulations of the Interstate Commerce Commission prohibited a sale of Eastern's franchise rights to M & G because both parties were common carriers. After the consummation of the sale Eastern went out of business and M & G thereupon began serving for Chrysler Corporation the territory which had previously been assigned to Eastern.

Plaintiffs and some of the other Eastern drivers on whose behalf this action was brought signed up as drivers for M & G immediately after the agreement was signed. A question at once arose regarding their seniority in relation to M & G's existing employees. Eastern's employees relied particularly on Article IV, § 5, of the collective bargaining agreement,¹ which provides: "SECTION 5. Mergers, Etc. In the event that the Employer absorbs the business of another private contract or common carrier or is a party to a merger of lines the seniority of the employees absorbed or affected thereby shall be determined by mutual agreement between the Employer and the Unions involved. Any controversy with respect to such matter shall be submitted to the grievance procedure (Article 6)."

The dispute was submitted under the collective bargaining agreement's grievance machinery to a panel of a Joint Committee, consisting of an equal number of designated representatives of the employer and the union parties to the agreement. No member or officer of Local 107 was on the panel. After a hearing the panel unanimously decided that M & G had not "absorbed" Eastern and therefore had no obligation to recognize the seniority claims of the drivers formerly employed by Eastern. The agreement expressly provides that a decision by a majority of a panel of the Joint Committee "shall be final and binding on all parties".²

Dissatisfied with the decision of the Joint Committee, plaintiffs brought the present action. The complaint alleges that Eastern and M & G breached the collective bargaining agreement by their construction of the agreement and by conspiring with officials of Local 107 and others to secure a decision adverse to plaintiffs' seniority claim; that Local 107 breached its duty of fair representation of Eastern's drivers by adopting a neutral position before the Joint Committee, and by carrying on discussions with the employers and the Joint Committee outside plaintiffs' presence; and that the decision of the Joint Committee was arbitrary and was reached without a fair hearing. The complaint prays that the defendants be enjoined from giving effect to the decision of the Joint Committee and that on the contrary M & G be required to recognize Eastern's...