Jones Motor Co., Inc. v. Chauffeurs, Teamsters and Helpers Local Union No. 633 of New Hampshire, 81-1341

• Decision Date: 19 February 1982
• Docket Number: No. 81-1341,81-1341
• Citation: 671 F.2d 38
• Parties: 109 L.R.R.M. (BNA) 2793, 93 Lab.Cas. P 13,259 JONES MOTOR COMPANY, INC., Plaintiff, Appellant, v. CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 633 OF NEW HAMPSHIRE, Etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 38

671 F.2d 38

109 L.R.R.M. (BNA) 2793, 93 Lab.Cas. P 13,259

JONES MOTOR COMPANY, INC., Plaintiff, Appellant, v. CHAUFFEURS, TEAMSTERS AND HELPERS LOCAL UNION NO. 633 OF NEW HAMPSHIRE, Etc., et al., Defendants, Appellees.

No. 81-1341.

United States Court of Appeals First Circuit.

Argued Oct. 7, 1981.

Decided Feb. 19, 1982.

Philip J. Moss, Boston, Mass., with whom Morgan, Brown, Kearns & Joy, Boston, Mass., was on brief, for appellant.

Robert Christy, Manchester, N.H., with whom Christy & Tessier, Manchester, N.H., was on brief, for appellees.

Before BOWNES and BREYER, Circuit Judges, and BONSAL, ^* Senior District Judge.

BREYER, Circuit Judge.

Jones Motor Company (the "Company") appeals from a decision of the United States District Court for the District of New Hampshire denying the Company's motion for summary judgment and dismissing its complaint. The Company contends that the district court erred both (1) in holding that its claim against Chauffeurs, Teamsters and Helpers, Local Union No. 633 (the "Local") for damages arising from a strike, allegedly illegal under the parties' collective bargaining agreement, was subject to arbitration, and (2) in denying its motion for summary judgment. We agree, reverse, and remand.

I

The facts are largely undisputed. The Company, a Pennsylvania corporation, is an interstate trucking company with a freight terminal in Nashua, New Hampshire. The Local is an International Teamsters Union affiliate. The Company and the Local have signed a collective bargaining contract that has two separate sets of provisions. One set consists of the "National Master Freight Agreement"-a set of provisions found in Teamster contracts throughout the Nation. The second set consists of the "Northern New England Supplement"-separate local provisions found in New England Teamster contracts. This case rests upon claims by each party that the other has violated the contract ("Master" plus "Supplement") in effect between them.

The strike that the Company claims unlawful arose as follows: On the night of December 18, 1979, Roger Pellerin, a Local member, began his 6:30 p. m. to 2:30 a. m. workshift on the loading platform of the Company's Nashua, New Hampshire, freight terminal. It was a very cold night. At approximately 8:30 p. m. Filteau, another employee, entered the office of the supervisor, Joseph Lacourse, and said that he was sick; at 10:00 p. m. Filteau was granted permission to leave early. Pellerin continued to work by himself, occasionally entering the office to warm up. Pellerin did not stop working at 11:30 p. m. for his usual meal break, but at approximately 11:45 p. m. he entered Lacourse's office, had a brief conversation with Lacourse, punched his time sheet, and left. What Pellerin said to Lacourse before leaving is a matter of dispute. Lacourse in his affidavit of December 28, 1979, recalls that Pellerin "told me that he was leaving and was not coming back." Pellerin's version is that he felt frozen, weak, chilled to the bone, and that I skipped my scheduled luncheon break and reported to supervisor Joseph Lacourse in the dispatcher's room that I was frozen, the cold was going right through me and had to go home because I couldn't take it anymore and wouldn't return for the balance of the shift. I interpreted Lacourse's basic silence as consent and went home at approximately 11:45 p. m. before my shift would otherwise have terminated at approximately 2:30 a. m.

Lacourse recorded in the Company log book that Pellerin went home frozen.

The next day the terminal manager, Arthur Dunham, conferred with Lacourse and the Local's shop steward, Roland Bouffard, about these events. According to Dunham, Bouffard felt that Lacourse's version of the facts showed that Pellerin had voluntarily quit. Dunham then instructed Lacourse that Pellerin was not allowed back to work. When Pellerin reported to work at 6:00 p. m., he asked Lacourse where his time card was. Lacourse responded that, in the opinion of the Company, Pellerin had voluntarily quit the night before.

The Local then took the position that Pellerin had not quit, but had gone home sick, and that the Company had thus "discharged" him without first discussing the disciplinary action with the Local Business Agent, Leo Kelly, as required by the Supplemental Agreement Article 46(5)(a) and (b). ¹ On December 20, 1979, the Company received a telegram from the Local threatening unspecified action against the Company unless it reinstated Pellerin. On December 26, 1979, Kelly telephoned Charles Long, the Company's vice-president for labor relations, to advise him that the Local would take economic action, unless the Company immediately reinstated Pellerin. Long responded that it was his understanding that Pellerin had quit and stated that the Company was willing to have the question of Pellerin's status submitted to the arbitrator specified in the contract, namely, the Northern New England Joint Area Committee, scheduled to meet on January 4, 1980. Kelly refused this suggestion.

On December 27, at approximately 7:00 a. m., Kelly called a strike and established a picket line in front of the Company's Nashua terminal. The Company then sent a telegram to the Local urging it to terminate the strike and submit the dispute over Pellerin's status to arbitration. On January 3, 1980, the Company filed an action in federal district court, claiming that the strike was illegal under the collective bargaining contract and seeking an injunction and damages. ² The strike ended the next day.

At the same time that it ended the strike, the Local submitted a grievance on behalf of Pellerin to the contract arbitrators, the Northern New England Joint Area Committee. The arbitrators deadlocked. Pursuant to Article 46(1)(b) of the Supplemental Agreement, the grievance was then submitted to another arbitrator, the Eastern Conference Joint Area Committee. That body decided that Pellerin should be reinstated with full seniority on June 2, 1980, but that the preceding six months should be considered as a suspension for which no compensation, health and welfare, or pension contributions would be made. The Committee also decided to issue a final warning letter to Pellerin in reference to walking off the job.

Meanwhile, the Company, while recognizing that its request for an injunction against the strike was moot, continued to press its district court claim for damages. The Local answered the complaint on the merits and both sides engaged in discovery. On the basis of the pleadings, the contract, answers to discovery requests, and affidavits, each side then moved for summary judgment. Neither side sought to present any additional evidence. The court heard oral argument on the summary judgment motions. Instead of deciding the summary judgment question, however, the court sua sponte decided that the basic issue in the case-which side breached the contract-should be submitted to arbitration, a matter that neither party had previously raised. And, it dismissed the complaint.

The Company moved for reconsideration, arguing that the collective bargaining agreement nowhere requires it to seek arbitration of its claim, and that even if the agreement required submission to arbitration, the Local had waived its right to insist on arbitration by proceeding on the merits in court. The district court rejected both arguments and reaffirmed its earlier decision. The Company then appealed to this court, arguing (1) that the district court erred in finding that the Company must submit its damage claim to arbitration, (2) that the district court erred in finding that there was no waiver by the Local of its right to insist on arbitration, and (3) the district court erred in failing to grant the Company's motion for summary judgment. We do not pass on the Company's first claim of error, but we believe that the second and third claims of the Company are correct.

II

We meet at the outset the question of whether the district court erred in dismissing the complaint on the ground that the collective bargaining agreement required that the matter be submitted to arbitration. The parties have vigorously argued various interpretations of the provisions in both the Master Agreement and the Supplement governing an employer's remedies in the case of an illegal strike. ³ We do not need to pass on these arguments because we believe that no matter what procedures were or were not required under the collective bargaining agreement, the Local has by its conduct in court waived any right that it might have to insist on arbitration.

The Local did not promptly request arbitration as to the strike's legality. Nor has it as yet acted to enforce any rights it may have under the contract to arbitrate this issue. The Company filed its complaint on January 3, 1980, and amended it on January 21, 1980. The Local answered the complaint, admitting jurisdiction on January 23, 1980. The individual defendants-appellees answered on May 23, 1980, also admitting jurisdiction. Depositions were taken (three by the Company and one by the Union) and a pretrial conference was held on July 2, 1980. The parties then filed cross-motions for summary judgment on the merits, briefed the merits, and had oral arguments on the merits on October 24, 1980. At no time during these proceedings did anyone mention arbitration. Rather, the first time arbitration was mentioned was more than a year after the Local filed its answer. That was February 19, 1981, when the district court decided, evidently completely on its own, that the issue should be heard by arbitrators, and dismissed the case.

Despite the policies favoring arbitration of contractual disputes, Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957), Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960), it has long been held that parties are free to waive...