Cleveland v. Porca Co.

• Decision Date: 27 October 1994
• Docket Number: No. 93-3125,AFL-CIO,93-3125
• Citation: 38 F.3d 289
• Parties: 147 L.R.R.M. (BNA) 2385, 63 USLW 2276, 129 Lab.Cas. P 11,201, 30 Fed.R.Serv.3d 164 Sedolia CLEVELAND, Administratrix of the Estate of Melvin Cleveland, deceased, Plaintiff-Appellant, v. PORCA COMPANY, formerly doing business as Emge Packing Company Incorporated, Emge Packing Company Pension Fund for Hourly Rated Employees, United Food and Commercial Workers International Union (), et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

38 F.3d 289

147 L.R.R.M. (BNA) 2385, 63 USLW 2276,

129 Lab.Cas. P 11,201,

30 Fed.R.Serv.3d 164

Sedolia CLEVELAND, Administratrix of the Estate of Melvin Cleveland, deceased, Plaintiff-Appellant, v. PORCA COMPANY, formerly doing business as Emge Packing Company Incorporated, Emge Packing Company Pension Fund for Hourly Rated Employees, United Food and Commercial Workers International Union (AFL-CIO), et al., Defendants-Appellees.

No. 93-3125.

United States Court of Appeals Seventh Circuit.

Argued May 12, 1994.

Decided Sept. 29, 1994.

Rehearing Denied Oct. 27, 1994.

Joseph A. Yocum (argued), Yocum & Yocum, Evansville, IN, for plaintiff-appellant.

Thomas O. Magan (argued), Brian P. Williams, Kahn, Dees, Donovan & Kahn, Evansville, IN, Irving M. King (argued), Kelly J. Hupfeld, Cotton, Watt, Jones & King, Chicago, IL, and Rodney H. Grove, Grove Law Office, Evansville, IN, for defendants-appellees.

Before BAUER, COFFEY, and MANION, Circuit Judges.

MANION, Circuit Judge.

Four employees of Porca Company sued to enforce an arbitration order which held that Porca Company had breached its collective bargaining agreement. They also sued Porca Company for breach of its collective bargaining agreement and the Emge Packing Co. Pension Plan for Hourly Rated Employees ("Pension Plan") for violating the Pension Plan agreement. Finally, the employees sued their local and international unions for breach of the duty of fair representation. The district court granted summary judgment in favor of each defendant. The plaintiffs appeal. We affirm.

I. Background

The plaintiffs, Melvin C. Cleveland, ¹ Joseph Effinger, Roe E. Freudenberg and Cecil K. Mallory were employees of Porca Company (formerly Emge Packing Co., Inc.) ("Porca"). The employees worked at its meat packing plant in Indiana (Indiana plant). United Food and Commercial Workers Local Union No. 172 ("Local 172") represented the plaintiffs in their employment relationship with Porca and had entered into a collective bargaining agreement with Porca on their behalf.

In the fall of 1990, Porca and Excel Corporation ("Excel") began negotiations aimed at selling the Indiana plant to Excel. During the negotiations, Local 172 requested that if Porca and Excel entered into such an agreement, Excel be required to assume the collective bargaining agreement. Porca, however, refused to include this provision in its contract for the sale of the Indiana plant even though the collective bargaining agreement between Porca and Local 172 provided that: "The Agreement shall be binding on the parties hereto and their successors." After negotiations on the sale became final, Porca, on December 17, 1990, closed down its plant and fired all of its employees. On December 19, 1990, Excel began operations at the plant but at a much scaled-back level. Excel hired approximately 150 of the approximately 368 former Porca employees, but refused to recognize the collective bargaining agreement that was in effect between Porca and Local 172.

Local 172 filed a grievance with Porca, claiming that Porca had violated the collective bargaining agreement by failing to require that Excel assume the agreement. This dispute was submitted to arbitration pursuant to the collective bargaining agreement, and the arbitrator found that Porca had violated the successorship provision of the collective bargaining agreement. He also found that "[t]he union is entitled to a 'make-whole' remedy," stating that "Excel has paid Porca's former employees less than was due and owing under the labor contract [so Porca] should be responsible for that difference." The arbitrator's decision, however, failed to set forth any measure of damages for the union members not hired by Excel. The failure to account for these workers is explained by the fact that the arbitrator mistakenly assumed that Excel had hired almost the entire former work force of Porca, while in fact less than fifty percent of the employees terminated by Porca were hired by Excel. It is therefore unclear whether the arbitrator intended those not hired by Excel to receive a make-whole remedy.

After the arbitrator's award was handed down, Local 172 and Porca met on several occasions to discuss the arbitrator's award and its ambiguity. Porca argued that those employees who had been hired by Excel would be entitled to an award for back and front pay but that those not rehired were entitled to nothing. Local 172, on the other hand, took the position that every former employee, whether hired by Excel or not, was entitled to back and front pay for Porca's violation of the collective bargaining agreement. Local 172 and Porca eventually compromised and entered into a Comprehensive Agreement and Release and later an Addendum to the Comprehensive Settlement Agreement ("Settlement Agreement"). The amount of the award for each employee was based on their employment status with Excel and on the number of years each had worked for Porca. All of Porca's former employees were given the opportunity to receive the amount due them under the Settlement Agreement in exchange for signing a general release. And all of Porca's employees, except the four plaintiffs, signed the release.

The four employees instead filed a complaint against Porca seeking to by-pass the Settlement Agreement and enforce the arbitration award, with all former employees receiving back and front pay. The plaintiffs also sued Porca and the Pension Plan pursuant to Section 301 of the Labor Management Relations Act ("LMRA"), claiming that Porca had violated the collective bargaining agreement and that the pension plan violated the Pension Plan Agreement by distributing excess pension funds to Porca. And finally, plaintiffs sued Local 172 and their International Union, claiming that the unions had breached their duty of fair representation by entering into the Settlement Agreement. The district court granted summary judgment in favor of the defendants. Plaintiffs appeal.

II. Analysis

A. Notice of Appeal

Initially, we must determine whether we have jurisdiction over this appeal. The defendants claim that we do not because the Notice of Appeal failed to list, either in the caption or the body of the Notice of Appeal, the names of all of the persons taking the appeal. At the time of filing, Rule 3(c) of the Federal Rules of Appellate Procedure provided "The notice of appeal shall specify the party or parties taking the appeal...." In Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988), the Supreme Court held that Rule 3(c)'s requirement that a notice of appeal "specify the party or parties taking the appeal" is a jurisdictional requirement and therefore the failure to name each individual appellant deprived the court of jurisdiction over the appeal. In response to the Torres decision, the Federal Rule of Appellate Procedure were amended. See Advisory Committee Notes, Fed.R.App.P. 3(c) ("The amendment is intended to reduce the amount of satellite litigation spawned by the Supreme Court's decision in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988)"). Effective December 1, 1993, Amended Rule 3(c) provides that "[a]n appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Fed.R.App.P. 3(c).

Although the notice of appeal in this case was filed on September 2, 1993, prior to the effective date of Amended Rule 3(c), the Supreme Court, in adopting the amended rule, stated that the rule shall govern pending cases "insofar as just and practicable." 113 S.Ct. Preface 819 (April 22, 1993). In this case, it is "just and practicable" to apply Amended Rule 3(c). The defendants will suffer no prejudice or injustice by this appeal going forward. Dodger's Bar & Grill, Inc. v. Johnson County Bd. of County Comm., 32 F.3d 1436, 1440 (10th Cir.1994) (it is just and practicable to apply Amended Rule 3(c) because the defendants will suffer no prejudice or injustice); see also Garcia v. Wash., 20 F.3d 608, 609 (5th Cir.1994) (it was just and practicable to apply Amended Rule 3(c) to appeal filed prior to December 1, 1993).

The question still remains, however, whether the notice of appeal in this case satisfied the requirements of Amended Rule 3(c). Here, the notice of appeal stated: "Notice is hereby given that the plaintiffs in the above-entitled case, hereby appeal to the United States Court of Appeals for the Seventh Circuit from the final judgment entered in this action on the 6th day of August, 1993." The caption to which this statement referred reads as follows: "Melvin Cleveland, et al, Plaintiffs, v. Porca Company, etc., et al, Defendants."

Amended Rule 3(c) specifically provides for this form of notice stating: "An attorney representing more than one party may fulfill this requirement by describing those parties with such terms as 'all plaintiffs,' ... 'the plaintiffs A, B, et al.' " The above notice was therefore clearly sufficient to satisfy Amended Rule 3(c). See Dodger's Bar & Grill, 32 F.3d at 1440 (notice stating that the appeal is by Dodger's "and the other individually-named plaintiffs" is sufficient to meet the requirements of Amended Rule 3(c)).

We now turn to the merits of this case. The plaintiffs sued their local and international unions for breach of the duty of fair representation. The plaintiffs also asserted violations of Section 301 of LMRA against Porca and the Pension Plan. The district court granted all defendants summary judgment. We review a decision granting summary judgment de novo, Porter v. Whitehall Lab., Inc., 9 F.3d 607, 612 (7th Cir.1993). Summary judgment is appropriate when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Applying this standard, we consider each of the plaintiffs'...