Mumford v. Glover, 73-3037

• Decision Date: 11 November 1974
• Docket Number: No. 73-3037,73-3037
• Citation: 503 F.2d 878
• Parties: 87 L.R.R.M. (BNA) 2945, 75 Lab.Cas. P 10,452 Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 878

503 F.2d 878

87 L.R.R.M. (BNA) 2945, 75 Lab.Cas. P 10,452

Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees.

No. 73-3037.

United States Court of Appeals, Fifth Circuit.

Nov. 11, 1974.

William L. Irons, James D. Forstman, Birmingham, Ala., for plaintiffs-appellants.

William F. Gardner, Sydney F. Frazier, Jr., Birmingham, Ala., for Ala. Pipe, and others.

William E. Mitch, Birmingham, Ala., for Local 324, Glover, and others.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

This case stands for the proposition that those with a cause of action should not be barred from the fields of advocacy merely because they have trouble making their way through the jurisdictional thicket. We find ourselves cutting the path which will allow plaintiffs to state their case in district court.

The district court dismissed the plaintiffs' complaint 'for failure to state a claim upon which relief can be granted.' Upon review here for the limited purpose of determining the validity of the dismissal, we look to see if there are any facts which plaintiffs could prove that would entitle them to relief. Czosek v. O'Mara, 1970, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21; Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied,365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. As a part of this assessment, we must accept the facts alleged to be true. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247; Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320.

Plaintiffs are members of Local No. 324 of the International Molders and Allied workers Union (the Union or Local 324) and are employed by the Mead Corporation (Mead or the Company). The Union and Mead entered into a collective bargaining agreement on February 19, 1972. Article 19 of this agreement carried forward a previous agreement setting up and regulating a pension plan. Section 20 of Article 19 read: 'The above plan shall not be subject to renegotiation until June 30, 1972.' The Agreement itself was to remain in force through December 31, 1974, and thereafter until one party or the other gave 60 days notice of termination.

Plaintiffs-appellants allege that the Union scheduled a meeting for June 3, 1972, to elect members to the committee which would bargain for changes in the Pension Plan. Plaintiffs prepared for that meeting by selecting two nominees dedicated to terminating the pension fund from each Mead plant. They also endeavored to insure that a majority of the membership would show up at the meeting so that their nominees would be elected. But when the meeting was held officers of Local 324 announced that they could not get order and then adjourned the meeting. These officers announced that the meeting would be rescheduled. But two days later employees learned that the president of the Union had instead appointed a bargaining committee on his own. At a subsequent union meeting, on June 17, Union officers assured the membership that a vote would be taken on any plan which this committee brought back. During the ensuing weeks various employees demanded of Union leadership orally and in writing that the pension plan not be extended. On August 15 a petition to impeach the Union leadership, signed by 1,000 of the Local's 1,800 members, was presented to the Union. On August 18 an amendment to the Pension Plan was executed by the Union and Mead without ratification by the Union membership. Subsequently a petition to rescind the agreement was filed by 1,300 of the Local's membership. Officers of the Local ignored that petition.

Plaintiffs filed this suit against Mead, the Union, and trustees of the Pension Trust on July 17, 1972, seeking a termination of the Pension Plan and a refund of involuntary payroll deductions currently being held by the Pension Trust.

Subsequent to the dismissal below, the Union and the Company entered into an agreement whereby the Pension Fund refunded $1,700,000 to the class plaintiffs. This sum was made up of employee contributions to the Pension Fund plus interest on those contributions. Thus, at the time of oral argument the appellees had dispersed most of the booty. Except for incremental benefits, infra, and possible attorney's fees we would have a classic case of mootness. We were not advised of the division of the spoils except by two sentences at the end of Appellant Mead's brief and in Appellee's 'Alternative Motion for Remand for Determination of Attorney's Fees.'

Disconcerting as this may be, forcing us to judge in a very sensitive area and in a near vacuum, we do so, knowing of possible remaining remnants on the battlefield. What started out as a potential armageddon will end with a minor skirmish requiring us to fire jurisdictional cannon which will be heard on future battlegrounds.

Plaintiffs-appellants claim that 301 of the Labor Management Relations Act, 29 U.S.C. 185 ¹ gives federal district court jurisdiction over this suit.

'Plaintiffs further aver that the Pension Plan . . . has expired and contrary to the provisions contained in said Pension Plan and the collective bargaining agreement . . . is being maintained in violation of the foregoing agreements . . ..'

A further claim, cognizable under Section 185 when it arises in the context of a collective bargaining agreement, was that the Union leadership abused their duty of fair representation.

'Workers further contend that Local 324 . . . failed to fairly represent the employees within the meaning of Section 159 of Title 29, U.S.C.A. . . . in executing an agreement contrary to the written and oral demands of employee-members. The affidavits submitted . . . established that bad faith and hostile discrimination in the Union's breach of their statutory duty by signing an agreement seeking to breathe life into a defunct pension plan.' ²

The contention that the collective bargaining agreement was violated by continuation of the Pension Plan is based on the Appellant's apparent belief that the phrase in Article 19, Section 20 'shall not be subject to renegotiation' means 'shall terminate.' ³

We do not read the agreement as plaintiffs do, and we therefore find that there was no violation of the collective bargaining agreement in the continuation of the Pension Plan after June 30, 1972. The phrase 'shall not be open to renegotiation until June 30, 1972' in its plain sense merely prohibits alteration before that date. It does not suggest that renegotiation or any other act is required in order for the plan to remain in effect beyond June 30, 1972. Certainly the documents presented to this Court do not suggest a different intention on the part of those who concluded the first agreement. Nothing in the collective bargaining agreement supports such an interpretation of 'renegotiate' and there are no directives for the Pension Fund in the event of termination. The prospect of termination is not covered in the second document submitted, the 'Rules and Regulations of the Pension Plan.' Article IX, Section 2 of the Rules and Regulations reads: 'If this Pension Plan is discontinued, the assets then remaining in the Pension Fund after providing for the expenses of the Plan, shall be allocated in the following manner . . ..' Rules and Regulations at 20. The section is stated in the conditional; if 'renegotiate' was intended to mean 'terminate' it is unlikely that the termination provision would have been so worded.

Admittedly, when a pension provision provides for renegotiation one of the possibilities opened is that the negotiators may decide to terminate the plan. But the possibility is not the certainty. The only certainty encompassed by the term 'renegotiation' is that the parties are permitted to negotiate about the contents of the plan once again. This is what the Union and the Company did, and, in itself, this did not violate the contract between Local 324 and Mead. We therefore agree with the district court that plaintiffs did not state a cause of action when they contended that Union and Company had violated the terms of the collective bargaining agreement in not terminating the Pension Plan on June 30, 1972.

We must now address ourselves to the issues raised by the allegation that the Union has abused its duty of fair representation. Such a duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all Union dealings implicit in the Congressional grant to unions, in 29 U.S.C. 159(a), ⁴ of the exclusive power to represent all emloyees in the collective bargaining unit. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842, 850; Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048.

This Court has never ruled on the question of whether Section 185 might be used as a jurisdictional base for a claim of abuse of the duty of fair representation outside of the contractual context. Today we hold that Section 185 does not provide such jurisdiction. The plaintiffs-appellants' essential assertion in the instant case is not that any specific term of the collective bargaining agreement, such as the proper operation of a seniority clause, was violated. Rather they claim that the Union had failed to fairly represent them in the administration of the Pension Plan. The existence of a pension plan clause provides the context within which the Union must act, but there is no stipulation in the clause itself which the Union or Mead has violated. See Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103. Section 185 provides jurisdiction only in 'suits for violation of contracts between an employer and a labor organization . . . or between any such labor organizations'. ⁵ This section expressly requires a...