Milstead v. International Broth. of Teamsters, Local Union No. 957

• Decision Date: 05 September 1978
• Docket Number: No. 76-2614,76-2614
• Citation: 580 F.2d 232
• Parties: 99 L.R.R.M. (BNA) 2150, 84 Lab.Cas. P 10,739 Curtis MILSTEAD, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 957, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 232

580 F.2d 232

99 L.R.R.M. (BNA) 2150, 84 Lab.Cas. P 10,739

Curtis MILSTEAD, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 957 Defendant-Appellant.

No. 76-2614.

United States Court of Appeals Sixth Circuit.

Argued April 17, 1978.

Decided Aug. 2, 1978.

Rehearing and Rehearing En Banc Denied Sept. 5, 1978.

Sorrell Logothetis, Parks & Logothetis, Dayton, Ohio, for defendant-appellant.

David L. Hall, Pickrel, Schaeffer & Ebeling, Dayton, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and JOHNSTONE, District Judge. ^*

JOHNSTONE, District Judge.

Plaintiff, Curtis Milstead, sued his former employer and union local under Section 301 of the Labor Management Relations Act, ¹ claiming that the defendant IRC&D Motor Freight, Inc., (Company) had wrongfully discharged him and that defendant, Teamsters Local No. 957 (Union) had breached its duty of fair representation in failing to vigorously pursue his grievance. After the Court denied the Union's motion for a directed verdict, the jury found that the Union had breached its duty to Milstead, and assessed damages of $20,000 against it. The jury also found the Company liable and assessed damages of $10,000. Only the Union has appealed. We affirm as to the issue of Union liability but remand to the district court for a proper determination of damages.

Milstead began work for the Company in 1972 on an intermittent basis. His last period of employment for the Company began on March 18, 1974. The complaint alleges that this last period was sufficiently long to entitle Milstead to the benefits of seniority status accruing under § 41(a) of the Central States Area Local Cartage Supplemental Agreement (Local Cartage Agreement). ² This agreement covered those Company drivers who worked on routes within a twenty-five mile radius of Dayton, Ohio.

The Local Cartage Agreement was supplemented by the Air Freight Rider Agreement (Air Freight Agreement) which applied specifically to those employees making deliveries to and from the Dayton airport. During the 1967-1973 period, the Air Freight Agreement contained a provision which required the Company to maintain separate seniority lists as to each "contract group" of employees. In effect, this provision meant that time spent under one contract could not be transferred and added to the days worked under another.

When the Air Freight Agreement was renegotiated in 1973 to cover the years 1973 through 1976, the provision containing the requirement of separate seniority listing was omitted. This gave the impression (at least on the face of the contract) that time spent under different contracts could be accumulated for gaining "regular employee" status. Some testimony at the trial, however, indicated that the provision was omitted inadvertently and that the Union and the Company had agreed informally to continue the seniority provision. Milstead worked 44 or 45 days during the March 18, 1974, through May 31, 1974, period. At trial, the essence of the dispute between the Company and Milstead was whether any of those days could be properly deducted so as to deprive Milstead of the job security afforded by seniority listing. Although not directly in issue here, it is necessary to explore the history of Milstead's employment with the Company to more fully understand the Union's duty of fair representation.

From March 18 through May 7, Milstead worked either 29 or 30 days. He testified that approximately five of those days were spent on the Air Freight route and the remainder on Local Cartage. The Company insisted that these five days could not be included for seniority listing purposes under the Local Cartage Agreement since separate seniority lists were maintained for each route. Milstead claimed that these Air Freight days could not be deducted since the Air Freight Agreement did not contain the provision requiring separate seniority listing.

On May 10, 1974, Milstead contacted the Company and asked whether any more work was available. He was told that he could not work without signing a 1974 Summer Replacement Waiver form. ³ If the form were not signed, any additional work by Milstead would have resulted in his attaining employee status. Believing that he had already accumulated sufficient time for such status, Milstead signed the form. ⁴

Milstead worked 15 days throughout the remainder of May. On May 30, he was informed by the Company that it had no further need of his services. Milstead replied that he had already achieved regular employee status during the March 18 May 7 period. But the Company again asserted that he did not have the requisite 30 days under the Local Cartage Agreement since the time worked on Air Freight routes could not be included.

Having viewed the factual background of the events leading to the Company's dismissal of Milstead, we now turn to examine the process by which his grievance was denied. The Union received the grievance on June 6, 1974. After an attempt to informally reconcile the issue with the Company, the matter was placed on the agenda for the Joint Committee meeting scheduled for June 12. ⁵ At the meeting, Union business agent Sherman Brown presented an argument in Milstead's behalf. Milstead then spoke at length, reading from the text of his grievance. ⁶

At the conclusion of Milstead's presentation, his claim to regular employee status was challenged on the basis of the separate seniority listing arrangement which presumably covered those employees working on the Local Cartage and Air Freight routes. This challenge was not answered. Brown testified at the trial that he was unaware at that time that Milstead had worked on both routes, and that his ignorance of the fact was attributable to Milstead's failure to inform him prior to the meeting. There was, however, some uncertainty regarding the currency of the Air Freight Agreement (which presumably contained the separate seniority provision). The Joint Committee thus decided to render a conditional decision which affirmed the grievance if the Company were unable to establish the currency of the Air Freight Agreement. Shortly thereafter, a Company representative delivered to Brown a copy of the Air Freight Agreement. Brown reviewed the document with Milstead but apparently did not notice the absence of language pertaining to the establishment of separate seniority listings. Brown then referred Milstead to another employer.

With these facts as a background, we now address the district court's denial of the Union's motion for a directed verdict. In considering a motion for a directed verdict under Rule 50(a), the trial court "must determine whether there was sufficient evidence presented to raise a material issue of fact for the jury." O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975). As applied in this context, "sufficient evidence" is such that, when viewed in the light of those inferences most favorable to the nonmovant, Galloway v. U. S., 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943), and Dowdell v. U. S. Industries, 495 F.2d 641, 643 (6th Cir. 1974), there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable men could differ. Sulmeyer v. Coca-Cola Co., 515 F.2d 835, 841 (5th Cir. 1975), Cert. denied 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976), Citing 5A Moore's Federal Practice P 50.02(1) (2d ed. 1974). Appellate courts apply this same standard. O'Neill v. Kiledjian, supra at 513, Citing 9 Wright & Miller, Federal Practice and Procedure § 2524, at 542 (1971).

Milstead contended that the Union should have thoroughly scrutinized the Air Freight Agreement to determine whether there was any provision which authorized the maintenance of separate seniority listings. Since we conclude that there was sufficient evidence upon which this allegation could be submitted to the jury, it is unnecessary to reach the merits of other issues raised by counsel.

" The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909-910, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370 (1964). A breach of that duty occurs only when a union's conduct toward an individual member is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. Bad faith is not, however, a necessary element of proof when alleging arbitrary or discriminatory conduct by a union. Ruzicka v. General Motors Corp., 523 F.2d 306, 310 (6th Cir. 1975). In some instances, it is necessary to show only that the union has processed a grievance in a perfunctory fashion. Vaca v. Sipes, supra, 386 U.S. at 194, 87 S.Ct. at 903; St. Clair v. Local 515, 422 F.2d 128, 130 (6th Cir. 1969). Certainly the duty of fair representation may be breached whenever a union ineptly handles a grievance because it is ignorant of those contract provisions having a direct bearing on the case.

In the case before us, it appears that there was more than sufficient evidence presented at trial which tended to show that the Union's duty was not fulfilled. Union business agent Sherman Brown testified that he was unable to counter the Joint Committee's challenge to Milstead's seniority claim because Milstead had failed to inform him about his work on Air Freight and Local Cartage routes. But the record shows that...