Cox v. C.H. Masland & Sons, Inc., 77-2296

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation607 F.2d 138
Docket NumberNo. 77-2296,77-2296
Parties102 L.R.R.M. (BNA) 2889, 87 Lab.Cas. P 11,682 Henry Wade COX, Plaintiff-Appellant, v. C. H. MASLAND & SONS, INC., a corporation, and Textile Workers Union of America, Local 1882, Defendants-Appellees.
Decision Date21 November 1979

Page 138

607 F.2d 138
102 L.R.R.M. (BNA) 2889, 87 Lab.Cas. P 11,682
Henry Wade COX, Plaintiff-Appellant,
C. H. MASLAND & SONS, INC., a corporation, and Textile
Workers Union of America, Local 1882, Defendants-Appellees.
No. 77-2296.
United States Court of Appeals,
Fifth Circuit.
Nov. 21, 1979.
Rehearing Denied Jan. 31, 1980.

Page 140

Robert T. Cunningham Jr., Mobile, Ala., for plaintiff-appellant.

John C. Falkenberry, Birmingham, Ala., for Textile Workers Union of America.

Thomas G. Greaves Jr., Mobile, Ala., for Marsland & Sons, Inc.

William C. Tidwell, III, Mobile, Ala., Mark S. Dichter, Francis M. Milone, Philadelphia, Pa., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Henry Wade Cox contends that his employer, C. H. Masland & Sons, Inc. violated a collective bargaining agreement by firing him without just cause and by failing to reinstate him after he had been discharged, and that his collective bargaining agent, the Textile Workers Union of America, breached its duty to represent him fairly by arbitrarily, capriciously or in bad faith refusing to demand arbitration of his grievance protesting his discharge. The district court denied a jury trial to Cox and, after hearing the evidence, dismissed his suit. We conclude that Cox had a right to a jury trial, but that the evidence was so decisive that, had a jury been empanelled, the judge would have been required to enter a directed verdict in favor of the defendants, without submission of the evidence to Cox's peers, and we therefore affirm the judgment.

Page 141


Masland, a carpet manufacturer, employed Cox as a shipping clerk. Cox often purchased carpet from Masland for other employees. To do so, he would place an order for a certain weight and grade of carpet with a clerk in another part of the plant, pay for the carpet and get a receipt that authorized the employee to remove the carpet from the premises.

On Friday, September 19, 1975, a fellow employee, Burkett, asked Cox to buy him a piece of carpet of the "as is" grade, weighing about twenty pounds. That grade of carpet was sold to employees for $.25 a pound, so Burkett gave Cox $5.00 to pay for it. A short while later Cox went to the clerk who could make sales, paid $2.10 for twenty-one pounds of carpet and got a receipt for the purchase of "scrap" grade carpet which sold for only $.10 a pound. When Burkett attempted to leave the plant with the "as is" grade carpet, he was sent home for taking it without a pass. On the following Monday morning, Cox learned that Burkett had been fired, but, when Cox was called to the personnel office, he claimed he had no knowledge about the incident. He, too, was fired later that morning for theft.

On September 25, Cox filed a grievance pursuant to the collective bargaining agreement between Masland and the Union. At the first step of the grievance procedure, Cox discussed the matter with his supervisor and a union representative. At the second step Cox presented a written grievance to the company. At each step, the company denied the grievance. Step three was a meeting between a company representative and the union grievance committee at which the facts of the incident and Cox's work record were reviewed by the company and the union. A settlement proposal was offered, but it was rejected by the company.

The collective bargaining agreement permitted the union to submit the grievance to arbitration if the decision in step three was not acceptable. The union executive board met to consider the case, but it decided not to proceed to arbitration because it thought it could not win.

Cox then filed this suit against Masland and the union for compensatory and punitive damages. He later filed a motion for leave to amend by adding a jury demand which was granted by the court. Immediately before the trial, however, the judge informed the parties that the jury would be used for advisory purposes only, pursuant to Fed.R.Civ.P. 39(c). At the end of Cox's case, the court entered judgment for the defendants on their motion for involuntary dismissal under Fed.R.Civ.P. 41(b).

The issues we must decide are intertwined. The threshold determination is whether Cox had a right to a jury trial, but this depends on the nature of his claims against the company and the union. If he did not, then we must adopt the judge's factual conclusions because there was substantial evidence to support them, and our inquiry ends. If, however, Cox was entitled to a jury trial, we must decide the effect of the denial of this right.


The seed of Cox's claims was sown by the National Labor Relations Act (N.L.R.A.), 29 U.S.C. §§ 141-187. In order to achieve the collective bargaining recognized by the Act as national labor policy, 29 U.S.C. § 151, the statutory plan permits a majority of the employees in a unit to elect a union to serve as their collective bargaining agent. 29 U.S.C. § 159. The union represents all employees, not only its members, and is their exclusive agent. Id. Because the very nature of collective bargaining precludes bargaining on their own behalf by individual employees, the union has a corollary and inescapable duty fairly to represent all of the employees in the bargaining unit not only in negotiating for an agreement, but also in enforcing the provisions of that agreement throughout its term. 1 Vaca v. Sipes, 1967, 386 U.S. 171,

Page 142

177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842; Humphrey v. Moore, 1964, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370, 367.

This duty requires the union to "serve 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." Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, 17 L.Ed.2d at 850. The duty is not, however, a ministerial one of satisfying each employee's demands at all costs; the union is the representative but not the servant of the employees. It not only may, but should, exercise judgment and discretion in its representative capacity. Its duty is violated "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Id. at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857.

Cox asserts two claims, one against Masland for breach of the collective bargaining agreement, and the other against the union for breach of its duty of fair representation. He seeks only monetary damages from each defendant, not arbitration or judicially-decreed reinstatement, remedies equitable in nature because they are in effect specific performance. See C. Wright & A. Miller, Federal Practice and Procedure § 2309 (1971). The monetary recompense for which he prays is the traditional common law remedy.

In Vaca the Court stated that an employee is not restricted in such circumstances to the relief that would have been available under the collective bargaining agreement. 2 Instead he may pitch his action against the employer on its alleged breach of contract and combine that charge with a claim against the union for its alleged wrongful failure to afford him his contractual remedy of arbitration. 386 U.S. at 186-87, 87 S.Ct. at 914-15, 17 L.Ed.2d at 855-856. The basis of the damage claim against the employer is apparent: breach of a contract made for the employee's benefit. There may also be a damage claim against the union, for

In some cases . . . at least part of the employee's damages may be attributable to the union's breach of duty, and an arbitrator may have no power under the bargaining agreement to award such damages against the union. In other cases, the arbitrable issues may be substantially resolved in the course of trying the fair representation controversy. In such situations, the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief.

386 U.S. at 196, 87 S.Ct. at 920, 17 L.Ed.2d at 861.

The Seventh Amendment to the Constitution preserves the right of trial by jury "in suits at common law." See also the procedural recognition of the constitutional right in Fed.R.Civ.P. 38(a). The scope of this guaranty encompasses suits in which legal rights...

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