Cronin v. Sears, Roebuck & Co.

• Decision Date: 03 January 1979
• Docket Number: 78-1179,Nos. 78-1166,No. 688,688,s. 78-1166
• Citation: 588 F.2d 616
• Parties: 100 L.R.R.M. (BNA) 2023, 85 Lab.Cas. P 10,968 William G. CRONIN, Ferl F. Toll, William T. Roach, and Alfred D. Russom, Appellants, v. SEARS, ROEBUCK & COMPANY, a corporation and Teamsters Local Union, alabor organization, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 616

588 F.2d 616

100 L.R.R.M. (BNA) 2023, 85 Lab.Cas. P 10,968

William G. CRONIN, Ferl F. Toll, William T. Roach, and Alfred D. Russom, Appellants, v. SEARS, ROEBUCK & COMPANY, a corporation and Teamsters Local Union No. 688, alabor organization, Appellants.

Nos. 78-1166, 78-1179.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1978.

Decided Dec. 8, 1978.

Rehearing and Rehearing En Banc Denied Jan. 3, 1979.

Kenneth V. Byrne, Clayton, Mo., for Cronin, et al.

Kalvin M. Grove (on brief), Fox & Grove, Chicago, Ill., argued for Sears; Jeffrey S. Goldman and Martin K. Denis, Chicago, Ill., on brief.

Harry H. Craig (on brief), Wiley, Craig, Armbruster, Wilburn & Mills, St. Louis, Mo., argued for the Teamsters; Clyde E. Craig, St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Judge, and LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

Plaintiffs brought this action in federal district court against their employer, Sears, Roebuck & Co., and their union, Teamsters Local 688, under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). They alleged that Sears had breached its collective bargaining agreement by refusing to pay plaintiffs witness pay and that the union had breached its duty of fair representation by failing to process properly their grievances arising from the company's refusal. The jury returned special interrogatories finding that Sears had not breached their collective bargaining agreement but that the union had breached its duty of fair representation. The parties stipulated each plaintiff's actual damages to be $107.00, or an aggregate total of $428.00, in lost wages. The jury assessed punitive damages of $10,000 for each employee against the union.

The trial court entered nominal damages for each plaintiff in the sum of $1.00 and vacated the award for punitive damages. On appeal plaintiffs assert that the trial court erred in excluding evidence of mental distress as part of their actual damage, in vacating the award of punitive damages and in entering only a judgment for nominal damages. Plaintiffs urge that the jury verdict in favor of Sears be set aside as well since the collective bargaining agreement was not ambiguous and that plaintiffs are entitled to a directed verdict on liability for breach of the agreement. Plaintiffs also appeal the denial of attorney fees. The defendant union has cross-appealed, asserting that it was error to enter a verdict for nominal damages.

We find the district court erred in entering a judgment for nominal damages; we otherwise affirm the judgment of the district court.

Article XI of the collective bargaining agreement between the union and Sears, entitled "Jury Pay," reads:

When employees covered by this Understanding are called upon for jury or witness service, or are subpoenaed for election duty, they shall advise the service manager or assistant service manager upon receipt of such call and, if taken from work for such service, shall be paid their regular pay and retain the fees paid them by the jury or election commission.

In 1976 the plaintiffs had brought a class action against both Sears and the union based on the loss of certain pension and seniority benefits. ¹ During the trial of that case three of the plaintiffs here, Russom, Roach and Toll, were called as witnesses on their own behalf. Plaintiff Cronin was subpoenaed as a witness but did not testify. When Sears refused to pay plaintiffs witness pay, grievances were filed with the union. ² The union processed the grievances through the fourth step of the grievance procedure, a two-man adjustment board composed of a union representative and a Sears representative, where they were denied. The union declined to pursue the grievances to arbitration, the next step in the grievance procedure, or to take economic action.

Both members of the adjustment board testified at trial. The union's representative stated that he was unable to discover through investigation any discernible past practice, custom or construction that would assist in interpreting the contract language, other than the language was derived from Sears' personnel policy for all its employees. He further testified that he consulted the union's legal counsel, who opined that an employee who appeared as a witness in a suit in which he was a plaintiff would not be entitled to witness pay under the collective bargaining agreement. ³ Sears' representative testified that Sears' refusal to pay regular wages to parties to a lawsuit was consistent with Sears' past practice and was in accord with Sears' general policy. The Sears representative further testified that he knew of no employees who had received witness pay as plaintiffs or defendants in lawsuits. He did note that Sears' employees who filed a workmen's compensation claim against Sears were not paid for their attendance at workmen's compensation hearings, but persons who had not filed claims but attended a hearing at the request of Sears or the Workmen's Compensation Commission were given witness pay. There was some testimony to the contrary. ⁴

We find that the agreement is not clear as to whether it was intended that employees who are parties to litigation have the same standing to reimbursement as employees who are not parties to a suit but are called or subpoenaed as witnesses. In interpreting collective bargaining agreements we have noted:

The parties' own mutual interpretation of the contract is entitled to considerable weight; and "(w)hen parties by their uniform conduct over a period of time have given a contract a particular construction, such construction will be adopted by the courts." Pekar v. Local 181, Brewery Workers, 311 F.2d 628, 636 (6th Cir.), Cert. denied, 373 U.S. 912, 83 S.Ct. 1303, 10 L.Ed.2d 414 (1962).

Barrett v. Safeway Stores, Inc., 538 F.2d 1311, 1314 (8th Cir. 1976).

In UAW v. White Motor Corp., 505 F.2d 1193 (8th Cir. 1974), Cert. denied, 421 U.S. 921, 95 S.Ct. 1588, 43 L.Ed.2d 789 (1975), we observed the principles relied upon by the Supreme Court in the Steelworkers Trilogy in interpreting a collective bargaining agreement:

The collective bargaining agreement states the rights and duties of the parties. It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. * * * The collective agreement covers the whole employment relationship. It calls into being a new common law the common law of a particular industry or of a particular plant.

" * * * There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages * * *."

Gaps may be left to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement. (United Steelworkers of America v. American Mfg. Co., 363 U.S. at 578-580, 80 S.Ct. at 1351-1352.)

In discussing the labor arbitrator's source of law, the Court added that he

is not confined to the express provisions of the contract, as the industrial common law the practices of the industry and the shop is equally a part of the collective bargaining agreement although not expressed in it. (363 U.S. at 581-582, 80 S.Ct. at 1352.)

505 F.2d at 1197-98.

Even where there exists some unambiguous contract provision it is still proper for the parties to interpret the collective bargaining agreement if the contract provision conflicts with the industrial common law. See Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973).

Sears contends there is no conflict here. It urges that the language of the provision implies that employees are to receive witness pay only when "called upon" by third parties, not themselves, to appear as...