Local 783, Allied Industrial Wkrs. v. General Electric Co.

• Decision Date: 05 January 1973
• Docket Number: No. 72-1260.,72-1260.
• Citation: 471 F.2d 751
• Parties: LOCAL 783, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

471 F.2d 751 (1973)

LOCAL 783, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.

No. 72-1260.

United States Court of Appeals, Sixth Circuit.

January 5, 1973.

COPYRIGHT MATERIAL OMITTED

Charles S. Wible, Lovett, Kusch & Wible, Owensboro, Ky., for plaintiff-appellant.

Morton Holbrook, Owensboro, Ky., for defendant-appellee; Ralph W. Wible, Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., on brief.

Before CELEBREZZE, McCREE and MILLER, Circuit Judges.

CELEBREZZE, Circuit Judge.

This case involves an appeal from two determinations of the District Court: the first from a preliminary order granting the Appellant Union permission to file an amended complaint and striking from the amendment the demand for a jury trial; the second from the final judgment of the District Court dismissing the Union's complaint.

The Local 783 of the Allied Industrial Workers of America (the Union) and General Electric Company (the Company) are parties to a collective bargaining agreement dated March 3, 1970 and to remain in force through August 19, 1973. The agreement covered the Company's facilities at its Owensboro, Kentucky location.¹ The dispute in question involves the Company's alleged violation of a farming-out clause contained in the present agreement and in all of the previous agreements between the Union and the Company since 1945. That clause, Article XVI, Section 5 of the present agreement, provides the following:

"There shall be no farming or letting out or transfer of machinery or work for the purpose of curtailing or reducing employment in the plant."

On March 5, 1970 the Company began a transfer of equipment from its Owensboro facilities to its new plant in Singapore. Subsequent shipments of equipment to the Singapore plant were made periodically throughout 1970 and 1971. Presently, the Company is producing at its Singapore plant tube mounts previously made at the Owensboro facilities.

The original complaint filed by the Union sought to enjoin the Company from transferring machinery, equipment or work from its Owensboro, Kentucky facilities to Singapore or any other location in violation of the collective bargaining agreement between the Union and the Company. While it was alleged that other sections of the Agreement had been breached by the Company, the central question centered around the interpretation of the farming-out clause. It is the Union's position that this operation is a transfer of machinery or work prohibited by the above clause, while the Company contends that the clause does not apply to transfers of equipment to another General Electric plant.

The District Court determined that the wording of the clause was ambiguous and that parol evidence could be introduced to explain its meaning. The District Court found that the prohibition did not apply to a transfer of machinery or work to another General Electric plant. It is argued by the Union that the clause is clear and unambiguous and that it was error for the District Court to consider evidence of the bargaining history of the two parties relating to the clause and of prior practices involving other transfers of work by the Company.

We first turn our attention to the question of whether the Court erred in not granting the Union a jury trial on its amended complaint. The motion for permission to file an amended complaint was filed some nine months after the original complaint was filed and eight days before the date set for trial. The amended complaint added a claim for money damages for wages lost by employees who had allegedly been laid off because of the transfer of operations to Singapore. The District Court struck the paragraph in the amended complaint which demanded a jury trial and permitted the Union to brief the question of whether a jury trial should be granted. After the Court determined that it would not grant a jury trial, the Union petitioned this Court to issue a writ of mandamus to compel the District Court to vacate its order denying a jury trial. We declined to issue the writ. The Company contends that this issue is not now open to reconsideration.

We have previously held that mandamus will not be used to review an interlocutory order except in extreme and exceptional cases. Black v. Boyd, 248 F.2d 156 (6th Cir. 1957), modified, 6th Cir., 249 F.2d 441. In the Black case, we determined that an order of the District Judge denying petitioner's right of trial by jury presented an exceptional situation in which it would be appropriate to review the ruling on a petition for mandamus. We found that the refusal to grant the demand for a jury trial, when it had been timely made as a matter of right, could be vacated by the issuance of a writ of mandamus. What is presented here, however, is a different issue. It is contended that the Union's demand for a jury trial was denied, not because it was within the Court's discretion to deny the demand under Rule 39(b) of the Rules of Civil Procedure,² but because the trial judge can properly condition his granting of a motion to file an amended complaint under Rule 15(a).³ In the Black case we noted that writs of mandamus have been issued in several cases in order to protect the right of trial by jury but we indicated that such might not be the case where the matter was one within the discretion of the Court. 248 F.2d 156, 161. In re Previn, 204 F.2d 417 (1st Cir. 1953), involved such a situation and the Court there determined that the matter was one to be settled when and if the case came on appeal from a final judgment. The question presented was whether the trial judge had abused his discretion in not granting a jury trial despite the fact that a timely demand had not been made.

We do not deal here with a judge's exercise of discretion in granting a jury trial even though a timely demand was not made. In such cases the party seeking a jury trial bears a heavy burden in attempting to show an abuse of discretion by the judge. Noonan v. Cunard Steamship Co., 375 F.2d 69 (2d Cir. 1967). McNabb v. Kansas City Life Insurance Co., 139 F.2d 591 (8th Cir. 1943). Our question is whether a judge can, within his discretion, permit a party to amend his complaint only on the condition that a timely demand for a jury trial be stricken from the amended complaint. We think that, given the proper circumstances, such action by the judge would be reasonable. See Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev'd on other grounds, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955). The question, then, is whether the circumstances in this case warranted such a condition. We think they did not. Under Rule 15(a) of the Rules of Civil Procedure, the Union could only amend its complaint by leave of court or by written consent of the adverse party. Here it sought to amend by leave of Court. The granting or refusing leave to amend under the particular circumstances of the case rests in the sound discretion of the trial judge, Strickler v. Pfister Associated Growers, Inc., 319 F. 2d 788 (6th Cir. 1963). Rule 15(a), however, provides that "leave shall be freely given when justice so requires." In the absence of any justifying reason, "this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). In Foman, some factors which would justify a denial of a motion to amend were identified as undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies by previous amendments, and futility of amendment. We find none of these or any other circumstances in this case which would have justified a refusal to permit the Union to amend its complaint.

This determination, however, is not dispositive of this issue. The question remains, if the circumstances do not justify refusal of permission to amend, do they warrant the condition to the amendment that no jury trial would be granted? The right to a jury trial is guaranteed by the Seventh Amendment and "occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935).⁴ It becomes discretionary with the trial judge to grant a jury trial only when the right has been waived by failure to make a demand. But even when exercising its discretion under Rule 39(b) of the Federal Rules of Civil Procedure, "the court should grant a jury trial in the absence of strong and compelling reasons to the contrary." Swofford v. B & W, Inc., 336 F.2d 406, 409 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965). Here, however, there was no waiver of the right. The original complaint requested only injunctive relief and was not triable by jury as a matter of right. The amended complaint requested additional relief in the form of money damages and was triable by jury as a matter of right. The jury demand made in the amended complaint was therefore, timely. See Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir. 1947), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947), Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir. 1947), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L. Ed. 355 (1947).

As we have noted before, "in the exercise of sound discretion, the granting of leave to amend can be conditioned in order to avoid prejudice to the opposing party." Strickler v. Pfister Associated Growers, Inc., 319 F. 2d 788, 791 (6th Cir. 1963). A requirement that the amendment be filed by a specified date or that the party amending bear a portion of the additional cost to the opposing party would, in proper circumstances, be reasonable conditions. Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). The circumstances may even warrant, as was the case in Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev'd on other grounds, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed....