Dill v. Greyhound Corporation, 20275

• Decision Date: 18 December 1970
• Docket Number: No. 20275,20276.,20275
• Citation: 435 F.2d 231
• Parties: Nathan T. DILL, Plaintiff-Appellee, v. The GREYHOUND CORPORATION, Southern Greyhound Lines, a Division of Greyhound Lines, Inc., the Amalgamated Transit Union, Local Division 1500, and the Southern Joint Council of the Amalgamated Divisions of the Amalgamated Transit Union, AFL-CIO-CLC, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

435 F.2d 231 (1970)

Nathan T. DILL, Plaintiff-Appellee, v. The GREYHOUND CORPORATION, Southern Greyhound Lines, a Division of Greyhound Lines, Inc., the Amalgamated Transit Union, Local Division 1500, and the Southern Joint Council of the Amalgamated Divisions of the Amalgamated Transit Union, AFL-CIO-CLC, Defendants-Appellants.

Nos. 20275, 20276.

United States Court of Appeals, Sixth Circuit.

December 18, 1970.

Solomon I. Hirsh, Chicago, Ill., for Southern Joint Council, etc.; Martin J. Burns, Jacobs, Gore, Burns & Sugarman, Chicago, Ill., on brief.

Robert F. Houlihan, Lexington, Ky., for Greyhound Corp., and others; Stoll, Keenon & Park, Lexington, Ky., on brief.

Donald R. Wellford, Memphis, Tenn., for appellee; McCloy, Wellford & Clark, Memphis, Tenn., on brief.

Before WEICK and MILLER, Circuit Judges, and MURRAH, Senior Circuit Judge^*.

WEICK, Circuit Judge.

Dill instituted an action in the District Court against The Greyhound Corporation and its subsidiary, Greyhound Lines, Inc. (Greyhound), Southern Joint Council of the Amalgamated Divisions of the Amalgamated Transit Union, AFL-CIO (Southern Council), and Local Division 1500 of the Amalgamated Transit Union, AFL-CIO (Local 1500). The suit was brought under the provisions of Section 301 of the Labor Management Relations Act (29 U.S.C. § 185) to recover damages against Greyhound for breach of the provisions of a Collective Bargaining Agreement relating to seniority, and against Southern Council and Local 1500 for breach of their duty to represent Dill fairly.

The case was tried before the District Judge without a jury. He rendered an opinion in which he found that Greyhound breached the provisions of the agreement relating to seniority ranking, and ordered Greyhound to place Dill in an appropriate place on the seniority roster. The Court granted judgment against Greyhound for stipulated damages in the amount of $3,800.

The Court further found that Local 1500 did not violate its duty of fair representation, but that Southern Council did. The Court concluded that Dill was —

"* * * not entitled to recover compensatory damages from Southern Joint Council because of its failure to fairly represent him, but this is a proper case for the awarding of punitive damages against Southern Joint Council for its arbitrary action and reckless indifference to the rights of the plaintiff in failing to fairly represent him."

The Court then rendered judgment against Southern Council in the amount of $5,000 for punitive damages only. Both Greyhound and Southern Council appealed. We reverse.

Dill entered the employ of Greyhound as an apprentice mechanic on June 24, 1957. His application for employment was dated June 17, 1957; he was a member of Local 1500. The controversy in the present case, however, relates to Dill's rank in Greyhound's seniority roster of bus drivers, a position which he did not secure until April 10, 1964.

The employees of the Southern Division of Greyhound were represented by eight local divisions of the Amalgamated Transit Union (ATU) in eight seniority districts. These eight divisions formed the Council of the Southern Greyhound Amalgamated Divisions (Southern Council), the membership of which Council consisted of a local division president from each division. The Southern Council acted as collective bargaining representative of all of Greyhound's operators, garage and terminal employees in the divisions, and negotiated the collective bargaining agreement in question. It also handled grievances where they were not determined at the local level and where the interests of employees represented by more than one of the locals were affected.

Prior to the 1962-1964 Collective Bargaining Agreement, Greyhound trained applicants for the job of bus driver in a drivers' school which it conducted. It paid students eight dollars per day while attending school. When training was completed the successful applicants were assigned as needed within the eight districts. After having been taught the routes involved (called "cubbing the run"), the drivers' names were placed on an assignment board.

The operator's seniority would start from the date and hour when his name was placed on the assignment board. The practice varied from district to district where several drivers satisfied their preliminary requirements at the same time. In one district they were ranked in alphabetical order; in other districts rank was determined by lot.

The 1962-1964 Collective Bargaining Agreement was executed on May 23, 1963, but became effective November 1, 1962. Its expiration date, October 31, 1964, was extended twice, with wage increases, and was effective through October 31, 1968. The form of the contract as to seniority was taken from a pre-1962 Eastern Greyhound contract. This contract was desired by the Southern Council because Eastern Greyhound employees were the highest paid employees in the entire Greyhound system. The provisions of the 1962-1964 contract relating to seniority read as follows:

"ARTICLE IV — NC. Section 1. SENIORITY ESTABLISHMENT.

"The seniority rank of operators will be determined by the date of graduation from Drivers\' School and prior to breaking-in and, as to simultaneous graduation, by the hour and date of application for employment. An operator graduated from Drivers\' School ahead of his class will, for seniority rank purposes, be deemed to have graduated with his class. All applications are to be stamped as of the time of filing.

"Duplicate copies, properly stamped, will be furnished to the Local Division after applicants become employees.

"For pay rate purposes, commencement of employment shall be deemed to be the date of the commencement of actual service."

In the fall of 1963 Greyhound decided that it needed help in the recruiting, testing and training of drivers for the coming year¹. On or about November 15, 1963, it made arrangements with Personnel Training Institute of Richmond, Virginia (PTI) to perform this service for it and to train the applicants at Atlanta, Georgia.

PTI advertised for prospects and selected those who met Greyhound's general standards; it took applications, conducted tests, and arranged for a final interview where students, if accepted by PTI, were instructed to report to PTI School in Atlanta. Names of prospects who had applied to Greyhound were turned over to PTI. When a prospect was accepted by PTI and satisfactorily completed his training at the school, he was required to pay PTI the sum of thirty-five dollars for each day of his instruction at the school. Greyhound did not contribute to that cost.

Dill had made application to Greyhound for the job of bus driver on September 4, 1963, at which time Greyhound was considering making the arrangement with PTI for driver training, and the arrangement was completed on November 15, 1963. Dill was required to make application for the PTI school and take an entrance examination, which he did on February 28, 1964 at 6:10 p. m. Dill's application was accepted after the tests, and he was sent to the first class (consisting of 82 trainees) at Atlanta. He had obtained a leave of absence from his job in the Maintenance Department. The class started on March 6, 1964, and finished on April 10, 1964. In all there were three classes, consisting of a total of 247 trainees. The remaining two classes were conducted in late April and May.

Prior to the beginning of the first class, Henry E. Bransom, Vice President in charge of Industrial Relations, decided, for purposes of determining seniority, to use the dates and hours on the PTI applications, rather than those on Greyhound's applications. His reasons were the facts that the company had turned over to PTI that phase of its operations, its supervisors were not responsible for maintaining records on students, and fewer applications had been submitted to the company than to PTI². He did not advise Southern Council of his action, but Local 1500 was advised thereof by the company on June 16, 1964.

A notice, signed by the Director of Safety and Personnel of Greyhound Southern Lines, was placed on the school's bulletin board, stating that seniority would be based upon the time and date when PTI applications were filled out. The notice was dated March 31, 1964.

Dill claimed that he did not see the notice; however, before he was employed as a bus driver he knew that his seniority would not be based on his Greyhound application.

In the early part of July, 1964, the first seniority roster following the April 10th graduation was posted. February 28, 1964 was used in determining Dill's rank of 55th on the seniority roster out of the 82 drivers who had completed training on April 10th. He contended that the date of his application for the job of apprentice mechanic, June 17, 1957, should be used, which would rank him second on the list, or that in the alternative, the date on his application for the job of bus driver, filed with Greyhound on September 4, 1963, should be used, which would place him fifth on the list.

Dill complained orally to the company, but it refused to change the roster. He filed a written grievance with the president of Local 1500 and was advised that two similar grievances had been filed; that the cases were coming up at the next Company-Council meeting in Atlanta; and that if any change was made, "then all others would be straightened out accordingly." Dill never filed a written grievance with Greyhound. Local 1500 did not forward Dill's grievance to the Council.

The District Judge ruled, however, that the Local's failure to forward the grievance to the Council was immaterial because his grievance would be governed by the outcome of the two similar grievances which were being processed. These two similar grievances were filed by bus drivers Nipp and Douthitt, who graduated with Dill in the April 10-class, and who asserted that their seniority rank should be based on the dates and time of their Greyhound...