Miller v. Gateway Transp. Co., Inc.
| Decision Date | 29 April 1980 |
| Docket Number | No. 79-1259,79-1259 |
| Citation | 616 F.2d 272 |
| Parties | 103 L.R.R.M. (BNA) 2591, 88 Lab.Cas. P 11,830 Philip C. MILLER, Plaintiff-Appellant, v. GATEWAY TRANSPORTATION COMPANY, INC., a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard M. Goldrich, Chicago, Ill., for plaintiff-appellant.
Arnold L. Burke, Chicago, Ill., for defendant-appellee.
Before PELL, Circuit Judge, VAN DUSEN, Senior Circuit Judge, * and TONE, Circuit Judge.
This appeal presents the question of whether the plaintiff is entitled to a trial on his claim that the defendant company violated his rights under a collective bargaining agreement by first suspending him for eight days and later discharging him. We conclude that triable issues are present, reverse a summary judgment for the company, and remand for trial.
Plaintiff Philip Miller brought this action under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), alleging that his former employer, defendant Gateway Transportation Co., Inc., had wrongfully suspended him and later terminated his employment, and that his union, Local Union No. 710 of the International Brotherhood of Teamsters, had failed in its statutory duty of fair representation in prosecuting Miller's grievances challenging Gateway's actions. The district court granted summary judgment in favor of Gateway and Local Union 710 on the ground that Miller had failed to exhaust his internal union remedies before bringing suit. Miller's appeal from the grant of summary judgment in favor of Local 710 was dismissed by this court as untimely, leaving before us only the instant appeal from the summary judgment in favor of Gateway.
In late 1974, Miller was hired as a truck driver by Gateway, whose employees were represented by Local 710. Miller had been a truck driver and member of the Teamsters Union for approximately thirty years and was a member of Local 710 while in Gateway's employ.
Miller's troubles began on June 22, 1976, when he was assigned by a Gateway dispatcher to drive a truck that, he alleges, exceeded the maximum legal height limit of 13 feet 6 inches. The dispatcher measured the truck at Miller's request and concluded it was within the legal limit, but Miller was dissatisfied with the measurement and requested that the dispatcher make a notation to that effect on the manifest. The dispatcher refused, and Miller then made his own measurement, which revealed he testified in his deposition, that the height exceeded the legal limit. Miller then refused to drive the truck.
This incident resulted in disciplinary action against Miller. Gateway at first took the position that he had "voluntarily quit" his job, but later relented at the behest of a union representative and reduced the disciplinary action to suspension for eight days and a written "final warning" that "any future occurrence of this nature will result in disciplinary action and/or discharge." Pursuant to the collective bargaining agreement between the employer and the union, Miller filed a grievance seeking back pay for the time he was placed on suspension.
Another clash between Miller and his employer was not long in coming. On August 16, 1976, a Gateway dispatcher ordered Miller to drive a truck to Cincinnati, Ohio, his bid point, via Louisville, Kentucky. He delayed in accepting the assignment, because, he alleges, he was concerned over the legality of the amount of time he would need to spend on the road to complete the trip. He consulted a union representative, who advised accepting the assignment. Approximately a quarter of an hour after he had been assigned the trip, Miller called Gateway to say he would take the assignment; he was then told, "As of now, you've resigned." Shortly thereafter, Miller received written notice that his employment had been terminated for refusal to take a normal work assignment. Miller filed a grievance claiming that the discharge was wrongful.
Miller's grievances, one challenging the eight-day suspension and the other the discharge, were consolidated and heard before the Chicago Joint State and Local Committee, a panel composed of three union and three management members. At the hearing, the representative the union furnished for Miller merely read the written grievances Miller had prepared. The committee denied both grievances. According to Miller, he then asked the union representative whether he could appeal the decision and was told, "Your appeal was denied."
Miller thereafter filed charges with the National Labor Relations Board alleging that Gateway and Local 710 had committed unfair labor practices. The Board refused to issue complaints on Miller's charges, and his effort to appeal was unsuccessful. The instant action followed.
The district court held that Miller's failure to pursue certain internal union remedies provided by the International Brotherhood of Teamsters' constitution and by the constitution and by-laws of Local Union 710 precluded him from bringing his § 301 suit against Gateway. 1 We cannot agree. Miller prosecuted his grievances to a final and binding determination under the terms of the applicable collective bargaining agreement. 2 The remedies the district court held Miller should have exhausted appear not in that agreement, but in the union constitutions and by-laws, to which Gateway was not subject. Assuming that an employer can assert the defense of failure to exhaust internal union remedies, 3 that defense is not available here. The union remedies at issue provide for "trials" of union members, officers, local unions, and other subordinate bodies of the International. Such a trial may be initiated by a union member's complaint alleging a violation of the union constitution or by-laws and may result in "reprimands, fines, suspensions, expulsions, revocations" and other similar relief. 4 That relief does not, of course, include the setting aside of an adverse decision rendered pursuant to the terms of a collective bargaining agreement by a union-employer grievance committee; 5 neither does it include any other relief to which Miller may be entitled from Gateway. 6 The defense of failure to exhaust internal union remedies is therefore not available to Gateway in this case.
Gateway urges that the district court's judgment in its favor can be upheld on another ground supported by the record, 7 viz., that Miller's claim under § 301, even if not barred by a failure to exhaust union remedies, is shown by the undisputed facts to be without merit. Gateway argues, correctly, that when, as in this case, the collective bargaining agreement requires exhaustion of a specified grievance procedure before suit can be brought, and that procedure is pursued to a final and binding determination adverse to the employee, he may maintain an action under § 301 to set aside that determination only if he can show both that the underlying grievance was meritorious and that the union breached its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). In this case, says Gateway, the undisputed facts show that Miller can prove neither. We think, however, that as to both, the record shows a genuine factual issue, and that this is true in the case of each of Miller's grievances.
Concerning the merit of the grievances, a genuine issue of fact exists as to whether Miller's refusal to accept the June 22, 1976 assignment was justified. The height of the truck Miller was told to drive on that date is clearly in dispute. If Miller is correct that the truck was over the maximum legal height, then he was justified in refusing to drive it, 8 and his suspension was improper.
Whether Miller's June 22 refusal was justified is relevant to the merit of the discharge grievance also. The collective bargaining agreement requires that an employee receive a warning letter before he can be discharged or suspended. This requirement is designed to give the employee a chance to correct a continuing course of misconduct or to avoid repetition of single instances of misconduct; it subjects to suspension or dismissal only the employee who in the face of a warning, engages in further misconduct. The warning letter therefore must be based on some misconduct, and the language of the bargaining agreement, although inartful, indicates as much. 9 Because Miller's conduct on June 22 may have been justified, the warning letter he received as a consequence may have been unwarranted. If this proves to be the case, Miller's discharge as a result of his August 16 refusal to take an assignment lacked the essential predicate of a valid warning letter and therefore contravened the collective bargaining agreement. 10
Similarly, nothing in the record indicates that Miller had received a valid warning letter prior to the eight-day suspension imposed by Gateway as a consequence of the June 22 refusal. Absent such a warning, Miller's grievance requesting back pay for those eight days would appear to have had merit whatever the height of the load and regardless of the outcome of the discharge issue.
The second element Miller must prove, a breach by the union of its statutory duty of fair representation, is likewise not foreclosed by the record. The union's duty includes more than merely a "perfunctory" processing of a grievance. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. at 917, 918; see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 569, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976). "(A) good faith effort to plead plaintiff's case" is required. Cannon v. Consolidated Freightways Corp., 524 F.2d 290, 293 (7th Cir. 1975). 11
In its most recent examination of the nature of the fair representation duty, the Supreme Court said that if the quality of representation provided by the union is such that it "seriously undermines the integrity of...
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