Dowty v. Pioneer Rural Elec. Co-op., Inc.

• Decision Date: 09 August 1985
• Docket Number: No. 83-3621,83-3621
• Parties: 119 L.R.R.M. (BNA) 3618, 103 Lab.Cas. P 11,602 Douglas A. DOWTY, Plaintiff-Appellant, v. PIONEER RURAL ELECTRIC COOPERATIVE, INC., Utility Workers Union of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 52

770 F.2d 52

119 L.R.R.M. (BNA) 3618, 103 Lab.Cas. P 11,602

Douglas A. DOWTY, Plaintiff-Appellant, v. PIONEER RURAL ELECTRIC COOPERATIVE, INC., Utility Workers

Union of America, Defendants-Appellees.

No. 83-3621.

United States Court of Appeals, Sixth Circuit.

Argued July 9, 1985.

Decided Aug. 9, 1985.

Ted L. Earl, Earl, Warburton & Adams, Tom Davis, argued, Columbus, Ohio, for plaintiff-appellant.

Neil F. Freund, Freund, Freeze & Arnold, Jane Lynch, argued, Dayton, Ohio, for Pioneer Rural.

Sorrell Logothetis, Logothetis & Pence, David Stolow, argued, Dayton, Ohio, Donald F. Menagh, New York City, for Utility Workers.

Before MARTIN, CONTIE and WELLFORD, Circuit Judges.

PER CURIAM.

Plaintiff, Douglas Dowty, brought a hybrid Sec. 301/fair representation claim against defendants Pioneer Rural Electric Cooperative ("Pioneer"), its employees, and the Utility Workers Union of America (the "Union") after an arbitration decision that prohibited him from pursuing a separate private business on pain of discharge. The district court granted summary judgment in favor of the two defendants holding the action was time barred under DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). We consider also whether this court has jurisdiction to hear the appeal.

Dowty worked as a lineman for Pioneer. While working for the company on a full-time basis, plaintiff "moonlighted" by selling and installing electrical generators. On September 15, 1980, Pioneer issued a rule which prohibited certain outside employment, including "any form of electrical work." This rule provided an employee the opportunity to cease the activity before being subject to discipline, which might include dismissal.

Shortly after issuing this rule Pioneer informed plaintiff that it would discharge him if he did not cease "moonlighting" in his electrical generator business. Dowty then initiated grievance procedures on November 30, 1980. Plaintiff was terminated for failing to discontinue his outside employment during 1981.

On May 15, 1981, a formal arbitration hearing was held following Dowty's grievance in accordance with the labor contract between Pioneer and defendant Union. The arbitration panel issued its award on June 24, 1981, which gave plaintiff ten days from the receipt of the award to discontinue his outside business as a condition to being reinstated without loss of seniority, but without back pay. Although not reflected in the award, the arbitration decision to which it was attached permitted plaintiff to continue selling the electrical generators, but did not permit him to continue installing or servicing them.

Edward Coggins, the Union's Regional Director, arranged for a July 7, 1981, meeting with plaintiff and two other union officials to discuss what the Union had done in representing Dowty and the status of the arbitration. Prior to the July 7th meeting, Coggins had contacted Harry Sworkin, the arbitration panel chairman, for a clarification of the last paragraph in the award, ¹ specifically to determine what plaintiff would be permitted to do in his outside employment. Coggins claimed that Dworkin indicated that plaintiff could continue to sell electrical generators and perform related work. Coggins, however, noted that at the July 7th meeting plaintiff was read the contents of the arbitration award and had actual knowledge of the Union's position with respect to that award. Plaintiff does not contest that he was made aware of the arbitration award contents at that time.

Plaintiff disputes Coggins' claim with respect to his advice about what plaintiff would be permitted to continue to do under the terms of the award. Dowty claims that at the meeting, Coggins advised him "that under the terms of the Arbitration Decision and Award, [he] could no longer perform any electrical wiring outside of [his] employment with [the Company]." This representation, if made, would not comport with the arbitration panel's decision and award.

At this meeting, Dowty was told that he would receive a copy of the decision and the award by certified mail. He received them on July 10, 1981, but it was not until January 8, 1982, that plaintiff filed his hybrid Sec. 301/fair representation claim in district court.

Both Pioneer and the Union claimed that plaintiff's claims were barred by the applicable state statute of limitations. The Supreme Court, however, issued its DelCostello decision while this case was pending, and the Union (but not Pioneer) filed a memorandum with the district court contending that plaintiff's claims were barred by the six-month limitations period of Sec. 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b) adopted in DelCostello. Immediately after the Union filed its memorandum raising the DelCostello defense, Pioneer filed a similar motion.

The district court granted defendants' motions for summary judgment based on the claimed six months' limitation period holding that plaintiff had filed his action one day beyond the limitation period. The court held that the period began to accrue on July 7, 1981, the date of the meeting. The district court, however, noted that "The Court will order that judgment be entered in favor of the Defendants once Pioneer files a verified copy ... of the collective bargaining agreement and the arbitration decision and award with the Court" (emphasis in original). The court's "first" decision was filed August 26, 1983, and plaintiff filed notice of appeal on September 6, 1983, ten days later. It was not until September 16, 1983, that the district court entered "final" judgment in favor of the defendants after receipt of the verified copies as specified in the August 26 order. The court noted in its September 16 order that "Plaintiff filed a Notice of Appeal on September 6, 1983, presumably from this Court's Decision and Entry of August 26, 1983, WHICH WAS NOT A FINAL ORDER. Plaintiff's counsel is urged ... to file a supplemental Notice of Appeal indicating that the appeal, itself, is taken from the within Order rather than from the Decision of August 26, 1983" (capitalization in original). Plaintiff, however, did not follow the court's recommendation and never filed a supplemental Notice of Appeal.

We first consider whether plaintiff has properly pursued his appeal to this court despite the fact that none of the parties have discussed this issue.

Plaintiff appealed from the district court's August 26 order, which that court itself characterized as an interlocutory order. Dowty did not follow the court's suggestion to file a supplemental notice of appeal following what the district court deemed to be its final order journalizing the entry of summary judgment in favor of defendants.

If the August 26, 1983, decision is deemed to be a final judgment despite the district court's characterization, then jurisdiction for the appeal lies under 28 U.S.C. Sec. 1291; if it is not a final judgment, however, jurisdiction for this appeal would then have to be considered under 28 U.S.C. Sec. 1292. (The district court never certified its August 26 order for appeal pursuant to Sec. 1292(b).)

The Supreme Court in defining "finality" for purposes of the final judgment rule, has consistently held that an order which leaves nothing more than ministerial acts to be done and which otherwise ends the litigation on the merits meets the final judgment rule's requirements for jurisdiction to lie under 28 U.S.C. Sec. 1291. See, e.g., Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) ("A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment"); Republic Natural Gas Company v. Oklahoma, 334 U.S. 62, 67-69, 68 S.Ct. 972, 976-977, 92 L.Ed. 1212 (1948):

the requirement of finality has not been met merely because the major issues in a case have been decided and only a few loose ends remain to be tied up--for example, where liability has been determined and all that needs to be adjudicated is the amount of damages ... On the other hand, if nothing more than a ministerial act remains to be done, such as the entry of a judgment upon a mandate, the decree is regarded as concluding the case and is immediately reviewable.

See also, Cooper & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Brown Shoe Company v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), also suggests that jurisdiction does lie for an appeal from the instant case. There the Court found jurisdiction present in an antitrust action in which the order appealed from had disposed of every request for relief in the complaint and required complete...