Jones v. Truck Drivers Local Union No. 299

• Decision Date: 21 March 1989
• Docket Number: Nos. 85-1863,s. 85-1863
• Citation: 838 F.2d 856
• Parties: 45 Fair Empl.Prac.Cas. 1721, 45 Empl. Prac. Dec. P 37,778 Frances JONES, Beverly Harder, Eleanor Murray, Linda Nickel, and Mary Ruane, Plaintiffs-Appellees, v. TRUCK DRIVERS LOCAL UNION NO. 299, Defendant-Appellant. /86-1104.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 856

838 F.2d 856

45 Fair Empl.Prac.Cas. 1721,

45 Empl. Prac. Dec. P 37,778

Frances JONES, Beverly Harder, Eleanor Murray, Linda Nickel, and Mary Ruane, Plaintiffs-Appellees, v. TRUCK DRIVERS LOCAL UNION NO. 299, Defendant-Appellant.

Nos. 85-1863/86-1104.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 16, 1987.

Decided Feb. 3, 1988.

Rehearing and Rehearing En Banc Denied March 21, 1989.

Gerry M. Miller, Goldberg, Previant, Uelman, Gratz, Miller & Brueggeman, S.C., Marianne Goldstein Robbins (argued), Milwaukee, Wis., James P. Hoffa, Hoffa, Chodak & Robiner, Detroit, Mich., for defendant-appellant.

Ellis Boal (argued), Ronald Reosti, Detroit, Mich., Gary A. Benjamin (argued), Detroit, Mich., for plaintiffs-appellees.

Julius LeVonne Chambers, Charles Stephen Ralston, Steven L. Winter, NAACP Legal Defense and Education Fund, Inc., New York City, for amicus curiae, NAACP.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

WELLFORD, Circuit Judge.

Plaintiffs, five women, were office clerical workers at the Detroit terminal of the Square Deal Cartage Co., a company engaged in the transportation of automobiles to local dealerships. In August 1977, Square Deal was purchased by Cassens Transport, Inc., another company in the same industry. Plaintiffs were not retained by Cassens after the takeover. Square Deal's driver, yard, and garage workers, all of whom are male, were retained by Cassens. The defendant, a local Teamsters union, represented the clerical as well as the driver, yard, and garage workers.

When they worked at Square Deal, the driver and yard workers had the same seniority list, but the garage and office workers each had a separate list. At the time of the merger, Cassens had drivers and yard workers on separate seniority lists represented by the same local union, but Cassens had no garage workers and had only nonunion office workers at its company headquarters in Illinois. In an effort to prevent any seniority and "bumping" problems as a result of the merger, the Central Southern Conference Automobile Transporters Joint Arbitration Committee recommended that Square Deal's drivers and yard workers be given an opportunity to bid on either driver or yard jobs at Cassens, and that Cassens should then prepare driver and yard workers seniority lists for the merged company, dovetailing the two companies' drivers and yard workers according to their respective years of service at either company. Office workers were not allowed to bid on non-office jobs, however, regardless of their accrued seniority. As a result, plaintiffs were left jobless by the merger.

In early 1978, four plaintiffs filed against Cassens unfair labor practice charges with the NLRB and Title VII sex discrimination charges with the EEOC. The EEOC issued right to sue notices against Cassens on January 22, 1979. None of the plaintiffs filed unfair labor practice or Title VII charges against the union with the NLRB or the EEOC. They settled their unfair labor practice case against Cassens.

On November 13, 1978, plaintiffs filed a complaint in the Circuit Court of Wayne County, Michigan. The original complaint contained three counts. The first, against Cassens and the union, was based on the contention that their agreement "excluded Plaintiffs from ... bidding rights ... because they were women." This count recognized that bidding under the agreement was "in accordance with the seniority they had as employees of Square Deal Transport," but plaintiffs claimed the negotiation between defendants recognizing seniority rights under the Square Deal collective bargaining agreement violated "Plaintiffs' right to be free of employment discrimination because of their sex."

The next count concerned the employer only and claimed a refusal to hire plaintiffs as "yard" workers solely because of their sex. We are not concerned here with this charge. Count III was against the defendant union for failing "to represent Plaintiffs' interests in their negotiations" with Cassens with respect to bidding on jobs, and in refusing to represent plaintiffs by reason of their sex in their grievances that Cassens "wrongfully refused to hire" them for "yard" work in violation of "state and Federal law" with respect to equal employment. Plaintiffs later amended the complaint to add a Title VII complaint against Cassens and the union, which was found by this court to have no merit against the union based on procedural failures, and was accordingly dismissed. The amended complaint also alleged a pendent cause of action against both defendants under "Michigan's Civil Rights Act, M.C.L.A. Sec. 37.2101 et seq."

We dismissed the plaintiffs' fair representation claim because plaintiffs failed to file their claim within the limitations period set out in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). See Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir.1984). In our prior opinion, we set out, in part, the following facts:

At the time of the merger, Cassens had drivers and yard workers on separate seniority lists represented by the same local union, but Cassens had no garage workers and had only non-union office workers at its company headquarters in Illinois....

The efforts of plaintiffs and their Union to persuade Cassens' management to retain plaintiffs in some capacity after the merger were unsuccessful. When plaintiffs became aware that Cassens might not retain them after the merger, plaintiffs met with Wilson Holsinger, a union business agent, who testified that he first learned in August 1977 that Cassens did not plan to retain the plaintiffs and that Cassens Vice President Shashek told him he did not want any Union employees in the office and believed the work in the computerized Cassens office in Illinois to be beyond plaintiffs' abilities. Holsinger filed a grievance on behalf of the office workers, but plaintiffs testified he discouraged them from applying to do yard work at the merged company even though workers on the old Square Deal combined driver and yard worker list could obtain "extra" work without seniority in the garage and garage workers could obtain temporary work in the yard or as drivers.

748 F.2d at 1085.

In remanding the case, we stated:

In her opinion below, the District Judge focuses primarily on the federal claims and fails to make specific findings of fact and conclusions of law concerning the state claim under Michigan's Elliott-Larsen Act, Mich.Comp.Laws Ann. Sec. 37.2204(a)-(d). We are unable to determine on review which particular sections of that Act are at issue and what particular Union conduct the District Judge found to violate the Act. We are unable to determine from the opinion below whether the District Judge found that the Union's actions constituted illegal exclusion or expulsion from membership, classification or segregation of membership, efforts to cause or attempt to cause Cassens to violate the Elliott-Larsen Act, failure to adequately represent plaintiffs in the grievance process, or a combination of some or all of these prohibited activities.

748 F.2d at 1086-87.

The district court amended her prior decision upon the remand by adding the following language:

Cassens did not want women in its terminal and the defendant union contrived that, despite its obligation to these women members, there would be none. Its course of conduct to the end constitutes violations of all the Elliott-Larsen Civil Rights Act's prohibitions against labor union conduct.

It again must be noted, in evaluating plaintiffs' prima facie case under Elliott-Larsen, that Michigan courts have uniformly applied the federal substantive law of discrimination, and the federal allocation of burdens, in adjudicating cases filed under Elliott-Larsen.

Accordingly, inasmuch as plaintiffs have made a prima facie case that the union's breach of its duty to fairly represent them because of their sex constituted a violation of Title VII, those facts also constitute a violation of M.C.L.A. Sec. 37.2204(a), as a failure to fairly and adequately represent members in the grievance process because of sex. Similarly, the above-outlined facts present a prima facie case of violation of M.C.L.A. Sec. 37.2204(a) and (b), as (a) discrimination against a member because of sex, and (b) limiting, segregating, and classifying members; failing and refusing to refer for employment in a way which would deprive an individual of employment opportunity and which would adversely affect employment conditions because of sex.

Finally, a prima facie case was made under M.C.L.A. Sec. 37.2204(c) that this union caused or attempted to cause an employer to violate this article. By foreclosing plaintiffs, because of their office-worker classification, from participating in the Bid for Cassens' yardwork which the Arbitration Committee had ordered to be conducted by Master (Company) seniority, the defendant union made it inevitable that Cassens maintain an all-male yard. Moreover, by refusing even to advise plaintiffs that it was authorizing Cassens to hire casual yard worker/clericals after the bid, and by refusing to meet with plaintiffs and Cassens management on the subject of jobs, this defendant union attempted to cause an employer to violate M.C.L.A. Sec. 37.2202(a) by failing or refusing to hire ... because of sex.

Jones v. Cassens Transport, 617 F.Supp. 869, 885 (E.D.Mich.1985) (emphasis added, citations omitted).

Section 204 of the Elliott-Larsen Act, M.C.L.A. Sec. 37.2204, provides as follows:

37.2204. Labor organizations; prohibited acts

Sec. 204. A labor organization shall not:

(a) Exclude or expel from membership, or otherwise discriminate against, a member or applicant for membership because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(b) Limit, segregate, or classify membership or applicants for membership, or classify or fail or refuse to refer for...