Hayes v. BAKERY CONFECTIONERY & TABACCO WKRS.

• Decision Date: 25 September 1989
• Docket Number: Civ. A. No. C 85-0207-L(A).
• Parties: Marvin HAYES, Plaintiff, v. BAKERY CONFECTIONERY & TOBACCO WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL 213 OF CINCINNATI, OHIO, and Ralston Purina Company, Bremner Division, Defendants.
• Court: U.S. District Court — Western District of Kentucky

753 F. Supp. 209

Marvin HAYES, Plaintiff, v. BAKERY CONFECTIONERY & TOBACCO WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL 213 OF CINCINNATI, OHIO, and Ralston Purina Company, Bremner Division, Defendants.

Civ. A. No. C 85-0207-L(A).

United States District Court, W.D. Kentucky, at Louisville.

September 25, 1989.

COPYRIGHT MATERIAL OMITTED

Norman L. Belker, Belker & Associates, Louisville, Ky., for plaintiff.

Irvin H. Cutler, Jr., Segal, Isenberg, Sales, Stewart & Cutler, Louisville, Ky., David M. Cook, Kircher & Phalen, Cincinnati, Ohio, for Local 213.

Wm. A. Blodgett, Jr., Woodward Hobson & Fulton, Louisville, Ky., and Jeffrey P. Reinhard, St. Louis, Mo., for Ralston Purina Co.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION

ALLEN, Senior District Judge.

Plaintiff, Marvin Hayes, brings this action under Section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, alleging that he was discharged by the defendant, Ralston Purina Company ("Company"), in violation of its collective bargaining agreement with the defendant, Local 213, and that the defendant Union, of which he was a bona fide member, failed to comply with its duty of fairly representing him in his grievances regarding his termination and his suspension.

Plaintiff was first employed by the Company in 1975. In 1979 he was made a union steward, a duty which he subsequently relinquished. He was also a member of the union negotiating committee, which was to negotiate the terms of a new collective bargaining agreement to be entered into following the expiration of the 1983-85 collective bargaining agreement.

In September 1984, plaintiff was employed by the Bremner Biscuit Company, a subsidiary of Ralston Purina Company, as a porter in the cutting room. At that time, he was notified that he would be bumped from his position. Under the contract between the Union and the Company, he was then entitled to enjoy plant-wide seniority and to bump persons with less seniority. He chose to exercise his seniority by bumping Aaron Duke, who worked in the sanitation control unit. He was advised by Will Groover, who was to be his foreman in the sanitation control unit, that he would have fifteen days within which to train for the job, and that he would have to take a test in order to fully qualify for the job. He protested that fifteen days was not a sufficient time for training. His objection was rejected by the Company as were grievances which he filed during the period October 1, 1984 to November 30, 1984. Hayes claims that he assumed a grievance would be filed concerning the fifteen day training period.

On November 29, 1984, plaintiff was approached by Groover and told that he would have to go to Frankfort on the next day to take the test. He advised Groover that he wished to drive his own car to take the test and was asked whether he had liability insurance of $50,000. A call was made to his insurance company to determine whether he had this amount of insurance. When he discovered that he did not have this amount of insurance, he and Groover went to the Budget Rental Car office to rent a car for the drive to Frankfort the next day. When they arrived at the rental car agency, plaintiff did not have his driver's license and the contract to rent the car was apparently signed in Mr. Groover's name.

On November 30, plaintiff reported to work at 5:00 in the morning. He testified that he had on his blue shirt and that he was planning to drive to Frankfort to take the test. However, at 6:00 a.m., he was told that Groover would drive the car. Plaintiff objected. He was told to change into his work clothes. At 7:30 a.m., he and Ricky Simpson, the business agent for the union, and Diane Johnson, a union steward, went to the office of Keith Locke, personnel manager for the Company, to discuss the question of who was going to drive the automobile to Frankfort. At the meeting, the plaintiff claims that he was charged by Locke with refusing to go to Frankfort, and that plaintiff did not have a chance to present his side of the case because Locke was yelling. Plaintiff also contends that Simpson did not speak any words on his behalf. Plaintiff admits that he did point his finger in Simpson's direction during the discussion, and states that Simpson was hostile and said "Get out of my face."

Following the discussion which broke up at about 7:50 a.m., plaintiff proceeded to the locker room, changed back to his street clothes, and went to his automobile. While proceeding in his automobile to a point near the guard shack maintained by the Company, he noticed Simpson's automobile immediately behind him. Plaintiff claims that Simpson sounded his horn. Plaintiff thereupon got out of his automobile and walked back to the Simpson automobile where he claims that Simpson cursed him and hit him. Simpson, on the other hand, claimed that plaintiff hit him first with a sucker punch, and that as a result, Simpson's nose was fractured. Two independent witnesses, Roden and Mills, one of whom was driving a truck owned by the A-1 Sanitation Company, both maintain that the plaintiff struck Simpson first. In addition, Carolyn Smiley, who was the guard at the shack, testified that she saw plaintiff hit Simpson once, although she did not mention it in her original incident report where she merely said that there was a fight going on between the two.

Following the fight, during which plaintiff's shirt was torn, plaintiff returned to the plant. While there, he was in an agitated state of mind, and called Groover, with whom he met, a "punk." Consequently, Mr. Locke, the personnel manager of the Company, determined that plaintiff should leave the Company premises and go home, which plaintiff did in compliance with Locke's orders. Shortly after plaintiff left the plant, he was placed on suspension pending investigation.

On December 4, 1984, Lock called a meeting attended by plaintiff and by Diane Johnson and Joe Lynch, who were union stewards. During the course of that meeting, Diane Johnson, despite her inexperience as a union steward, addressed many questions to Mr. Locke and made several contentions on behalf of the plaintiff.

Three days after the December 4 meeting, plaintiff was notified that he had been discharged. On December 12, 1984, plaintiff, following a conference with his attorney Norman Belker, filed a grievance pertaining to both his suspension and discharge. On December 20, 1984, the grievance regarding the suspension was denied as untimely. The grievance regarding the termination was denied on its merits. At some time during the course of these events, it was agreed by the Union and by Mr. Locke that the Union would have an extension of time within which to decide whether to take the termination grievance to arbitration.

Following that agreement, Baker conducted a meeting attended by Locke, plaintiff, Diane Johnson and Joseph Lynch. In giving his version of the incident which occurred on November 30, plaintiff claimed as always that Simpson was the aggressor. He also claimed that he had never seen the Company rules of conduct placed on a bulletin board behind glass. Union members who were present went to the bulletin board, along with plaintiff, and there saw the Company rules posted. After the meeting on January 4, 1985, Baker, the president of the local union, advised plaintiff that the Union was not going to take plaintiff's suspension and termination to arbitration. The reasons for that determination were, according to the Union president, that he did not believe plaintiff's version of the events that took place on November 30, and that arbitrators always decide that a union employee who is the aggressor in a fight involving company employees is not entitled to be reinstated following discharge.

The primary issues raised by Baker and the local union at the January 4 meeting centered around the fact that plaintiff had been a good employee, and that he was entitled to mercy and to be reinstated because of his good record. No contention was made by Baker that the fight did not occur on Company property or that the rules of conduct did not apply to plaintiff's conduct. The Court observes that any such contention would probably have been of no avail since there was evidence that the fight occurred on Company property, and even if it did not, fighting between employees was a dischargeable offense.

Following the January 4 Third Step meeting, plaintiff and Simpson were both invited to attend the January 15, 1985 executive meeting of the international union. There, plaintiff and Simpson appeared separately to present their versions of the fight. The versions that they gave on January 15 did not vary substantially from those given on January 4 and December 4. After the meeting, the Union did request an opinion from their Cincinnati attorneys as to whether plaintiff's grievance should be taken to arbitration; they received an opinion that it should not.

It is noteworthy that defendants have cited many arbitration decisions revolving around fights between employees, and there seems to be unanimity in the arbitrators' opinion that an aggressor in a fight between employees is not entitled to be reinstated to employment following discharge.

In construing Section 301 of the Labor Management Relations Act (29 U.S.C. Sec. 185), the courts have universally held that in order for the plaintiff to recover in a fair representation suit, he must show a breach of contract between himself and the company and a lack of fair representation by the union. In the instant case, plaintiff has not shown that there was a breach of contract by the Company. The rules of employee conduct provide that an employee may be discharged for engaging in a fight with a fellow employee on Company property or engaging in violent conduct against a fellow employee.

Looking next to the question of whether or not the Union fairly represented plaintiff in his dealings with the Company over his...