Findley v. Jones Motor Freight, Div. Allegheny Corp.

• Decision Date: 21 January 1981
• Docket Number: 80-1487 and 80-1705,Nos. 80-1486,No. 429,A,J,429,s. 80-1486
• Citation: 639 F.2d 953
• Parties: 106 L.R.R.M. (BNA) 2420, 90 Lab.Cas. P 12,544 Michael J. FINDLEY v. JONES MOTOR FREIGHT, DIVISION ALLEGHENY CORPORATION, and Teamsters, Chauffeurs, Warehousemen and Helpers Local Unionones Motor Freight, etc., Appellant in 80-1486, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Unionppellant in 80-1487, Michael J. Findley, Appellee in 80-1486, 80-1487 Appellant in 80-1705.
• Court: U.S. Court of Appeals — Third Circuit

Page 953

639 F.2d 953

106 L.R.R.M. (BNA) 2420, 90 Lab.Cas. P 12,544

Michael J. FINDLEY v. JONES MOTOR FREIGHT, DIVISION ALLEGHENY CORPORATION, and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 429 Jones Motor Freight, etc., Appellant in 80-1486 Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 429, Appellant in 80-1487 Michael J. Findley, Appellee in 80-1486, 80-1487 Appellant in 80-1705.

Nos. 80-1486, 80-1487 and 80-1705.

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1980.

Decided Jan. 21, 1981.

James A. Matthews, Jr. (argued), Dennis J. Morikawa, Morgan, Lewis & Bockius, Philadelphia, Pa., for Jones Motor Freight.

Thomas W. Jennings (argued), Sagot & Jennings, Philadelphia, Pa., for Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union No. 429.

George W. Gekas (argued), Milton Bernstein, Melman, Gekas, Nicholas & Lieberman, Harrisburg, Pa., for Michael J. Findley.

Before HUNTER and WEIS, Circuit Judges and CAHN, ^* District Judge.

OPINION OF THE COURT

WEIS, Circuit Judge.

A union must provide its members with fair representation in resolving differences with employers. Alleging a violation of that duty, the plaintiff, unsuccessful in grievance proceedings, convinced a jury both of the deficiency of his union representation and the merits of his dispute with his employer. After review of the record, we conclude that the evidence failed to establish that the union breached its duty of fair representation and direct entry of judgment for the defendants.

The plaintiff filed suit in the district court against his former employer, Jones Motor Freight, asserting a termination of his employment in violation of the collective bargaining agreement, and against his union, Teamsters Local No. 429, asserting a breach of the duty of fair representation. A jury found that the union had not fulfilled its duty of fair representation, and, in a separate trial, also returned a verdict against the employer. The parties then stipulated to damages. Motions for judgment n. o. v. and new trial were denied.

Viewing the evidence most favorably to the plaintiff, the relevant facts are as follows. For several years before 1975, Findley had been employed as an over-the-road driver by Jones Motor Freight. On March 20 of that year, at 3:42 a. m., the telephone in the Findley residence rang, and the plaintiff's wife answered. Unable to understand what was being said, she handed the phone to her husband, who had also been asleep. Because of static, plaintiff was unable to identify the caller and hung up.

Since Findley was due to receive a work assignment from Jones Motor Freight, his wife thought the call might have come from the company and suggested that he call back. Findley was unsuccessful in dialing Jones directly, but with the assistance of a long distance operator, he was finally able to reach Warren Becker, a line haul coordinator at the terminal. Becker said Findley's refusal to accept the work call some minutes earlier was being deemed a voluntary quit. Findley detailed the difficulties with the telephone connection, but Becker refused to accept the explanation. Immediately after this conversation, Mrs. Findley reported the malfunction to the telephone company.

Between 7 and 8 a. m. that same morning, Findley received another telephone call and was barely able to hear the words "Western Union." He walked to a pay station in a nearby shopping center where he called Western Union and received the following message: "Your refusal to accept a work assignment in accordance with company work rules at 0347 hours this date is a 'voluntary quit' on your part and your status as an employee of this company is terminated (signed) W. L. Williard, Line Haul Supervisor."

Findley telephoned union business agent Gus Varish, who suggested filing a grievance with the union steward, Jack McCrary. When Findley returned to his home he met Craig Hunt, a repairman who had been dispatched by the telephone company to investigate the problem reported earlier that morning. Hunt found that the wire was partially corroded at the point where it entered the house. He replaced the defective section and gave the damaged wire to Findley. Hunt then went to a notary public's office, where he signed an affidavit stating that Findley's telephone was partially out of service "so that the complete call was not received." He also gave a copy of the Bell Company work order to Findley.

Following this, plaintiff went to the home of union steward McCrary and displayed the wire, affidavit, and work order. After hearing a description of the events, McCrary called the Jones supervisor and, terming the discharge illegal, demanded that Findley be put back to work. When the supervisor refused, McCrary assisted Findley in writing his version of the circumstances on a grievance form.

A few days later, Findley was notified by John Ignatosky, another union business agent, that a company level hearing was scheduled for the following Monday. No further investigation or interview with Findley by union representatives preceded that meeting, but Ignatosky and McCrary did accompany Findley to the hearing. Although plaintiff presented his documentary and demonstrative evidence, the company representative was not persuaded by it or Ignatosky's arguments for reinstatement. After denial of the complaint, the business agent announced his intention to begin the formal grievance procedure.

A hearing before the Joint Local City Grievance Committee was promptly arranged. Plaintiff was not told to bring his wife or any other witnesses. The designated panel consisted of two union members, one of whom was Varish, the business agent, and two industry representatives. The identity of the panel members was not disclosed to Findley, nor were there any consultations with Ignatosky or McCrary in advance of the hearing, although both were present.

During the hearing, Findley presented the Hunt affidavit, the piece of wire, and the work order. In addition, he spoke on his own behalf, and produced a letter from the Bell Company stating that a collect call had been placed to his residence at 3:42 a. m. lasting four minutes, and at 3:51 a. m. a station-to-station operator handled call lasting six minutes was placed to the Jones Company number. Ignatosky argued the facts of the case, contended that Findley had been discharged illegally, and urged that he be returned to work.

For its part, the company submitted an affidavit from an employee named Herr who said he heard Findley threaten Becker during the return call: "I'm going to get you for this." The employer argued that plaintiff had quit voluntarily, and the discharge therefore was not a proper grievance.

After the meeting, Ignatosky said that the telephone company letter which Findley had not disclosed before the hearing might have hurt his case. Before returning home, Findley had lunch with McCrary and talked to him about the case.

Unable to reach a decision, the joint local city panel declared it was deadlocked. The case was next taken before the Joint Area Grievance Committee, which met less than a month after Findley's discharge. Again, the company presented the Herr affidavit describing the alleged threats. Findley admitted that he told Becker he would "get him," but explained that this did not refer to physical harm, but to court action. Ignatosky read the grievance to the panel, and Findley once more reviewed the circumstances of the call and, except for the Bell Company letter, presented the same exhibits. He testified at the district court trial that the committee paid scant attention to his submitted exhibits. The Joint Area Grievance Committee found in favor of the employer. The union informed plaintiff of the result and told him that no further appeal was available.

The foregoing represents the factual basis for the district court's denial of the union's post trial motion. The court held that the failure of the union to investigate or attempt to present possible witnesses at the grievance meeting sufficiently evidenced a breach of the union's duty of fair representation. In addition, other factors the jury could have considered as having a substantially adverse effect on the grievance were said to be the failure to interview the Jones dispatcher who made the original call, the omission of any rebuttal to the irrelevant affidavit alleging threats to Becker, and the failure to argue the absence of prior warnings.

On appeal, defendants contend there was insufficient evidence to sustain the jury's determination that the union breached its duty of fair representation. The plaintiff cross-appeals from a denial of his request for counsel fees.

Because a union is authorized to act as the exclusive bargaining agent for its members, it has a duty to provide fair representation in the negotiation, administration, and enforcement of the collective bargaining agreement. A breach of that duty occurs when a union's conduct toward a member is "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). The union must be accorded a "wide range of reasonableness" to enable it to perform effectively, but this discretion is subject to "good faith and honesty of purpose." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976) (citations omitted).

When a collective bargaining agreement provides mandatory grievance machinery in which the employee's rights are processed by union representation, the contractual requirements must be followed. Failure to exhaust those remedies may be a valid defense to a suit brought by an employee against his employer for a violation of the collective bargaining agreement.

At trial, the employee must demonstrate that he did not receive fair representation from the union as well as proving his claim against the employer....