Olsen v. United Parcel Service

• Decision Date: 13 February 1990
• Docket Number: D,88-1382,Nos. 88-1299,No. 705,705,s. 88-1299
• Citation: 892 F.2d 1290
• Parties: 133 L.R.R.M. (BNA) 2265, 114 Lab.Cas. P 11,807 Harry OLSEN, Plaintiff-Appellant, Cross-Appellee, v. UNITED PARCEL SERVICE and Teamsters Local Unionefendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1290

892 F.2d 1290

133 L.R.R.M. (BNA) 2265, 114 Lab.Cas. P 11,807

Harry OLSEN, Plaintiff-Appellant, Cross-Appellee, v. UNITED PARCEL SERVICE and Teamsters Local Union No. 705 Defendants-Appellees, Cross-Appellants.

Nos. 88-1299, 88-1382.

United States Court of Appeals Seventh Circuit.

Argued Jan. 11, 1989.

Decided Jan. 5, 1990.

Rehearing Denied Feb. 13, 1990.

John K. Kneafsey (argued), Chicago, Ill., for plaintiff-appellant, cross-appellee.

Steven H. Adelman (argued), Michael N. Petkovich, John A. McDonald, Keck, Mahin & Cate, S.J. Adelman, Sonnenschein, Carlin, Nath & Rosenthal, and David Mathews (argued), Carmell, Charone, Widmer, Mathews & Moss, Chicago, Ill., for defendants-appellees, cross-appellants.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

The appellant, Harry Olsen, filed a hybrid § 301/fair representation suit against the United Parcel Service ("UPS") and Teamsters Local Union No. 705 ("Local 705" or "the Union"), alleging that UPS violated the terms of the collective bargaining agreement in terminating his employment without just cause and that Local 705 breached its duty of fair representation in processing his grievance. The district court entered summary judgment in favor of the defendants and Mr. Olsen appeals. We now vacate the summary judgment order and remand this case to the district court.

I.

The appellant, Harry Olsen, was hired by the United Parcel Service as a tractor-trailer driver in 1969 and continued in the employ of UPS until his discharge on March 3, 1986. ¹ Upon returning to the UPS facility on March 3, the appellant, a white man, engaged in a heated exchange with a black security guard. The guard asked the appellant to turn off his tractor engine and, when the appellant refused, words were exchanged, with the appellant resorting to racial slurs against the guard. The appellant telephoned UPS Supervisor Rudolph Chambers at the UPS dispatch office, but, rather than speaking to Mr. Chambers, continued to argue with the security guard. Mr. Chambers heard the appellant use racial epithets over the telephone and went to discuss the matter with UPS Night Manager Charles Dwyer. The appellant interrupted the meeting between Mr. Chambers and Mr. Dwyer, still complaining about the security guard. Mr. Chambers chastised the appellant and insisted that racial remarks would not be tolerated--regardless of the provocation. At that point, the appellant accused Mr. Chambers of siding with the guard and directed his racial remarks to Mr. Chambers, who is also a black man. Mr. Chambers "fired" the appellant at that point, ² and the appellant subsequently filed a grievance with Local 705.

At a grievance meeting with UPS officials, Local 705 business representative Frank Snow requested that UPS show the appellant leniency, but UPS refused. The appellant next appealed to the four-man Joint Grievance Committee ("JGC") established pursuant to Article 19 of the collective bargaining agreement then in effect between UPS and Local 705. The JGC was comprised of an equal number of union and management officials, with Mr. Snow serving as one of the union representatives and Amos Coleman, one of the UPS officials involved in the decision to discharge the appellant, serving as one of the two UPS representatives. At the JGC hearing, the appellant conceded that he used racial epithets on March 3, but argued that he had been provoked by Mr. Chambers. The appellant claimed that when he entered the UPS dispatch office, Mr. Chambers upbraided him and hurled a forty-gallon garbage container in his direction. The Local 705 representative assisting the appellant in his appearance before the JGC requested reinstatement based on the appellant's length of service and driving record, but the JGC denied the grievance petition and upheld the UPS decision to discharge the appellant.

The appellant subsequently filed suit in federal district court under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, alleging that UPS violated the collective bargaining agreement in discharging him from its employ without just cause and that Local 705 breached its duty of fair representation in processing his grievance. In support of his claim that Mr. Chambers provoked the argument inside the UPS office, the appellant submitted affidavits from two former UPS officials declaring that Mr. Chambers had "a very short fuse" and that he would frequently throw objects and resort to foul language when angry. Affidavit of Martin W. Linskey, Sr. p 7; Affidavit of Donald Cuzack p 11. In addition, the appellant adduced evidence that UPS sought to remove the appellant and that Local 705, as part of its agreement with UPS to protect black union members at the expense of its white members, cooperated with UPS to remove the "unprotected" employees. See Affidavit of Harry Olsen p 9; Affidavit of Martin W. Linskey, Sr. pp 6, 11, 12; Affidavit of Donald Cuzack p 16. The appellant further alleged that, with respect to his grievance, Local 705 assisted UPS in securing his discharge in breach of its duty of fair representation. Affidavit of Harry Olsen pp 7, 8, 9. See Affidavit of Martin W. Linskey, Sr. p 11; Affidavit of Donald Cuzack pp 16, 17.

The district court reviewed the appellant's arguments and identified five points of contention regarding the representation he received from Local 705 in the processing of his grievance: (i) the Union failed to conduct an investigation of the facts surrounding the incident; (ii) the Union improperly selected Mr. Snow to serve on the JGC, inasmuch as he was related to one of the UPS Committee members; (iii) the Union failed to object to the composition of the JGC; (iv) the Union failed to present all of the evidence on the appellant's behalf; and (v) the Union conspired with UPS to discharge the appellant because of his race. The district court found no evidence to support claims (ii)-(iv) and ruled that the Union's failure to investigate constituted a perfunctory handling of the grievance at best. Olsen v. United Parcel Service, No. 86 C 4037, mem. op. at 3-5, 1988 WL 4997 (N.D.Ill.1988). With respect to the allegations of a racially-based motive for dismissal and union cooperation in such activity, the district court admitted that the appellant had raised "a more colorable claim" on that question, but ruled that "it too lacks any significant factual support creating an issue of material fact." Id. at 5. The court reasoned that the evidence submitted by the appellant, consisting of a statement made five years before by a former UPS employee that "the company buys and sells who they want through the union" and the affidavit of Mr. Cuzack that "if a black truck driver had engaged in conduct similar to Olsen's, the driver would not have been discharged," when coupled to the fact that the appellant is white and Mr. Chambers black, "presents no evidence suggesting that his discharge was motivated by racial reasons and the Union conspired in the discharge decision." Id. at 6. As such, the district court granted the defendants' motions for summary judgment and entered judgment in favor of the defendants on January 19, 1988. The appellant filed this timely notice of appeal on February 17, 1988. We have jurisdiction to entertain the instant appeal pursuant to § 301(a) of the LMRA, 29 U.S.C. § 185(a), and 28 U.S.C. § 1291.

II.

Although the § 301 action against UPS is formally distinct from the fair representation claim against Local 705, Reed v. United Transportation Union, --- U.S. ----, 109 S.Ct. 621, 627, 102 L.Ed.2d 665, 677 (1989), the two causes of action are "inextricably interdependent," DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983), and the composite frequently referred to as a "hybrid" § 301/fair representation suit. See Reed, 109 S.Ct. at 627, 102 L.Ed.2d at 677; Johnson v. Artim Transportation System, Inc., 826 F.2d 538, 541 n. 1 (7th Cir.1987), cert. denied, 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed.2d 229 (1988); Flores v. Levy Co., 757 F.2d 806, 808 (7th Cir.1985). In order for an employee to maintain an action against his employer under § 301 of the LMRA, he must first establish that the union breached its duty of fair representation in processing his grievance. See, e.g., United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1563, 67 L.Ed.2d 732 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Adams v. Budd Co., 846 F.2d 428, 431-32 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989); Flores, 757 F.2d at 808; Huffman v. Westinghouse Electric Corp., 752 F.2d 1221, 1223 (7th Cir.1985); Superczynski v. P.T.O. Service, Inc., 706 F.2d 200, 203-04 (7th Cir.1983).

The Supreme Court has implied the duty of fair representation from the structure of the LMRA and the union's status as the exclusive bargaining agent for a group of employees. See Reed, 109 S.Ct. at 627, 102 L.Ed.2d at 677; DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290; Bowen v. United States Postal Service, 459 U.S. 212, 226, 103 S.Ct. 588, 596, 74 L.Ed.2d 402 (1983); Vaca, 386 U.S. at 177, 87 S.Ct. at 909; Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048 (1953). Given the federal labor policy of promoting the private settlement of labor disputes, e.g., Reed, 109 S.Ct. at 628, 102 L.Ed.2d at 677; DelCostello, 462 U.S. at 162, 103 S.Ct. at 2289; Bowen, 459 U.S. at 225, 103 S.Ct. at 596; Hines, 424 U.S. at 571, 96 S.Ct. at 1059; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964); United Steelworkers of America v....