Lomax v. Armstrong Cork Company

• Decision Date: 04 November 1970
• Docket Number: No. 28462.,28462.
• Parties: James LOMAX, Plaintiff-Appellant, v. ARMSTRONG CORK COMPANY, Walter S. Radcliffe, Jr., and John N. Martin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

433 F.2d 1277 (1970)

James LOMAX, Plaintiff-Appellant, v. ARMSTRONG CORK COMPANY, Walter S. Radcliffe, Jr., and John N. Martin, Defendants-Appellees.

No. 28462.

United States Court of Appeals, Fifth Circuit.

November 4, 1970.

Dixon L. Pyles, Pyles & Tucker, P. Zeb Jones, Travis, Stribling & Jones, Jackson, Miss., for plaintiff-appellant.

Melvin Bishop, Sullivan, Bishop, Jolly & Blount, Jackson, Miss., for defendants-appellees.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The appellant, plaintiff below, attacks a district court grant of summary judgment in favor of the defendants. We conclude that the district court's action passes muster, and affirm.

James Lomax brought an action pursuant to Section 301(a) of the National Labor Relations Act, Title 29, U.S.C. Section 185, against his former employer, Armstrong Cork Company (Armstrong) and Walter S. Radcliffe, Jr. and John N. Martin, plant manager and assistant plant manager respectively, of Armstrong's Jackson, Mississippi, operation for alleged wrongful discharge and violation of the collective bargaining agreement between Armstrong and the labor union of which Lomax is a member. The complaint prays for reinstatement in appellant's former job, back pay and bonuses, restoration of all pension rights, seniority rights, disability benefits, life insurance premiums, hospital and surgical benefits, and any other rights which accrue to Lomax under the collective bargaining agreement and of which he was deprived because of the alleged improper dismissal. The complaint also seeks $10,000 damages because of alleged tortious conduct on the part of the defendants.

This action was filed initially in the Chancery Court of the First Judicial District of Hinds County, Mississippi. Through various procedural maneuvers with which we need not concern ourselves here, the action was once removed to the district court, then remanded, and removed a second time. Following the second removal, the defendants moved for and were granted summary judgment by the district court.

Lomax was employed as a production employee by Armstrong, and was a member of Local 363 of the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, the duly authorized bargaining unit for the production and maintenance employees at Armstrong's Jackson, Mississippi plant.

Article II(A) of the collective bargaining agreement between the union and Armstrong provided:

"Past plant practice in the interest of garnishments shall not be operative but shall be amended to the following: any employee whose wages are garnished twice within any three-year period shall be terminated if garnishments or similar wage attachments, follow judgments, or similar legal notice, within a year".

On February 11, 1965, a garnishment in the amount of $274 was served upon Armstrong as a result of a judgment against appellant, obtained by Swift Savings and Loan Company on July 7, 1961. On May 3, 1965, a second garnishment was served upon Armstrong as Lomax's employer in the amount of $206 resulting from a judgment against appellant obtained by IFC Loan Corporation on April 13, 1965. After an investigation by Armstrong to determine the validity of appellant's indebtedness to IFC Loan Corporation, the regularity of its judgment of April 13, 1965 against Lomax and the garnishment of May 3, 1965, following such judgment, Armstrong terminated the services of Lomax on May 7, 1965, for violation of Article II(A) of the existing contract.

The collective bargaining agreement provided the following grievance procedure:

(a) If a "complaint" is not "satisfactorily adjusted" between the employer and/or the union steward and the foreman concerned, it "shall" be reduced to writing by the union, in which case a "grievance" exists.

(b) The grievance is subject to "further discussion" between the foreman concerned and the department steward,

(c) Within seven days the Union\'s chief steward may refer the grievance to the general foreman or department head.

(d) Within seven days the plant bargaining committee of the union may refer the matter to the plant manager\'s office where it is to be discussed by the committee and the plant manager (or the assistant plant manager); within seven days of the last discussion the company must give a written decision on the grievance. Unless notice of intent to arbitrate is given within seven days the company\'s decision "shall thereupon become final."

On May 10, 1965, the appellant presented a written grievance to the union local and on that day the grievance was processed through the first two steps of the above-noted grievance procedure. On May 11, 1965, at the regular monthly meeting between the union and management officials, the third step of the grievance procedure was utilized. On May 12, 1965, plant manager Radcliffe notified the president of the union local that management considered that Lomax had been properly discharged and that no basis existed for the grievance. The union subsequently investigated the case and informed Radcliffe that they had determined not to elect to send the grievance to arbitration. Pursuant to the grievance procedure, the company's decision became final seven days later, May 19, 1965.

On May 20, 1965, the appellant filed with the County Court of Hinds County, Mississippi, his petition and affidavit for writ of certiorari requesting that the judgment of April 13, 1965, in favor of IFC Loan Corporation, and rendered in the Justice of the Peace Court of District 5, Hinds County, Mississippi, be vacated and set aside. Of course, neither Armstrong, nor Radcliffe, nor Martin were parties to or on notice of this action. The writ was granted and on July 13, 1965, by agreement between counsel for IFC Loan Corporation and counsel for Lomax, the County Court entered judgment setting aside the previous judgment and resulting garnishment.¹ The County Court judgment of July 13, 1965, was then presented to the president of the union local, with appellant's assertion that the removal of this second garnishment necessitated a new union demand for Lomax's reinstatement. The union appeared to view the decision reached in May 1965 under the established grievance procedure as final and binding, and refused to take further action on Lomax's behalf. Thereafter this action was filed.

The court below granted the motion for summary judgment, concluding that no material issues of fact existed and that the defendants were entitled to judgment as a matter of law. The court stated:

"This Court reads Vaca v. Sipes, supra 386 U.S. 171, 85 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), just as the Court did in Boone v. Armstrong Cork Company, supra 5 Cir. 1967, 385 384 F.2d 285, that is, that a prerequisite to a Section 301(a) suit in this case is an allegation and proof that the union arbitrarily, discriminatorily or in bad faith failed to exhaust the contractual procedures. There is no such allegation in this action nor any proof offered in connection therewith or in support thereof, * * *"

We agree with the district court that there is no allegation of a union breach of the duty of fair representation, and that such absence is fatal to appellant's Section 301(a) claim. Th...