Robbins v. George W. Prescott Pub. Co., Inc., 79-1662

• Decision Date: 18 January 1980
• Docket Number: No. 79-1662,79-1662
• Parties: 103 L.R.R.M. (BNA) 2516, 87 Lab.Cas. P 11,816 Harvey ROBBINS, Plaintiff, Appellee, v. GEORGE W. PRESCOTT PUBLISHING CO., INC., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 3

614 F.2d 3

103 L.R.R.M. (BNA) 2516, 87 Lab.Cas. P 11,816

Harvey ROBBINS, Plaintiff, Appellee, v. GEORGE W. PRESCOTT PUBLISHING CO., INC., et al., Defendants Appellants.

No. 79-1662.

United States Court of Appeals First Circuit.

Argued Jan. 10, 1980.

Decided Jan. 18, 1980.

Richard A. Perras, Boston, Mass., with whom Deutsch, Weintraub & Glazerman, P. C., Boston, Mass., was on memorandum, for defendants, appellants.

Paul A. Schneiders, Canton, Mass., for plaintiff, appellee.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is an action for breach of contract, and for the tort of maliciously inducing breach of contract, filed initially in the state court by Harvey Robbins, naming as defendant George W. Prescott Publishing Company, Inc. (hereinafter the employer), publisher of The Patriot Ledger, a Massachusetts daily newspaper, and a number of its management employees. The action was removed by defendants to the district court under 28 U.S.C. § 1441(b) on the ground that it was an action for violation of a collective bargaining contract between an employer and a labor organization representing employees in an industry affecting commerce. Plaintiff alleges that he was employed as a leading sports writer and that, for improper reasons, the employer reassigned him to a lesser position; that he refused to accept this reassignment, and sought grievance procedures under the collective bargaining contract, and that he refused to carry out his new duties pending completion of these procedures. Because of this refusal the employer discharged him and thereafter, rather than seek to grieve the discharge, he instituted this action.

The defendants, in due course, moved for summary judgment on the ground that plaintiff was obliged to follow the grievance procedures, which would lead to arbitration rather than a lawsuit. The employer represented to the court, and to the plaintiff in a letter in identical terms, that it was "willing . . . to resolve the question of Mr. Robbins' discharge and/or any other grievances through the grievance and arbitration procedure provided by the collective bargaining agreement." The court, in a considered opinion, D.Mass., 1978, 457 F.Supp. 915, granted summary judgment dismissing the contract claim, and held the tort action in abeyance pending the grievance procedure.

We assume that the court expected that arbitration would ensue. Thereafter, however, the union, which was not a party to the lawsuit, considered plaintiff's contract claim and its board "voted not to pursue the matter to arbitration." Since, under the contract, the union initiates arbitration on behalf of the employee, and the employee has no power to do so individually, Black-Clawson Co. v. International Ass'n of Machinists, 2 Cir., 1962, 313 F.2d 179, no arbitration took place. Plaintiff returned to the court and renewed his claims for relief. Defendants objected that under the grievance procedure an employee complaint is terminated if the union concludes not to go ahead with it, in the absence of bad faith conduct on the union's part. This was correct. Hayes v. New England Millwork Distributors, Inc., 1 Cir., 1979, 602 F.2d 15.

Plaintiff did not contend then, and has not contended since, that the union acted in bad faith. Plaintiff had filed the suit without even asking the union to grieve. In an affidavit filed after the union's eventual refusal to invoke arbitration, all plaintiff says is that the union gave no reason for its refusal, but he became "convinced that the union can see no benefit to itself or its members by engaging in costly arbitration procedure and for that reason refused to do so." This does not meet plaintiff's burden of showing that the union acted otherwise than in an honest decision that the "grievance lacks sufficient merit to justify arbitration." Vaca v. Sipes, 1967, 386 U.S. 171, 192-93, 87 S.Ct. 903, 918, 17 L.Ed.2d 842.

The court thereupon, in a memorandum dated November 13, 1979, stated that the employer had undertaken "to resolve the dispute through arbitration," and that by its failure to do so it was "play(ing) fast and loose with this Court by hiding behind the union's refusal to initiate arbitration." The court ordered the employer to arbitrate. Defendants appealed. After the district court denied a stay pending appeal, we entered an order calling for oral argument on the further motion for stay presented to us, stating that, at the same time, we would consider such other matters as might be appropriate. The first question is that of our jurisdiction. We will defer that for a moment, and view the merits.

The Supreme Court has made it abundantly clear that arbitration is the preferred route for the resolution of labor disputes. United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. Plaintiff's resort to the courts, instead of following the grievance procedure, was improper. ¹ The lawsuit was premature. ² The court had no power to compel the employer to arbitrate. At best its power was limited to requiring the employer to observe and follow the grievance procedures. If those procedures properly terminated short of arbitration,...