Roscello v. Southwest Airlines Co., AFL-CI

Decision Date05 March 1984
Docket NumberNo. 83-2041,AFL-CI,A,83-2041
Citation726 F.2d 217
Parties119 L.R.R.M. (BNA) 3372, 100 Lab.Cas. P 10,851 Robert F. ROSCELLO, Plaintiff-Appellant, v. SOUTHWEST AIRLINES COMPANY and International Association of Machinists & Aerospace Workers,irline District 146, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Patrick J. Gilpin, Houston, Tex., for plaintiff-appellant.

Manitzas, Harris & Padgett, J. Joe Harris, San Antonio, Tex., for Southwest Airlines.

John E. Collins, Irving, Tex., for Intern. Ass'n of Machinists.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, THORNBERRY and TATE, Circuit Judges.

THORNBERRY, Circuit Judge:

This case involves the issue of the right to a jury trial in wrongful discharge and fair representation actions under the Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151, et seq. Because we conclude that the plaintiff was denied a jury trial in violation of the Seventh Amendment to the United States Constitution, we vacate and remand.

I. FACTS

Plaintiff Robert Roscello was discharged from his job by defendant Southwest Airlines Company on October 6, 1980. Prior to his discharge, Roscello had worked for Southwest Airlines at Houston's Hobby Airport for over two years. Beginning in February 1979 and continuing until his discharge, he was employed as an "Operations Agent," responsible for coordinating entry and departure of aircraft and for ensuring proper weight and balance on the aircraft.

Southwest's Operations Agents had no collective bargaining representative at the time that Roscello was promoted to Operations Agent. During August of 1980, the plaintiff had contact with the Teamsters Union regarding their efforts to become the bargaining representative for the Operations Agents. On or around September 22, 1980, Roscello placed notices of a union meeting in the time card slots of the appropriate employees. From this action and the Teamsters meeting on September 23, 1980, the plaintiff accumulated seventeen Teamster pledges out of the seventy-five or eighty Southwest Operations Agents at Hobby. Although no election between competing unions was ever held, Southwest Airlines "recognized" another union, the defendant International Association of Machinists (IAM), as collective bargaining representative for the Operations Agents on October 3, 1980. 1 Three days later, the plaintiff was fired. His termination notice listed as reasons for his firing failure to perform duties and excessive absenteeism.

The day after he was fired, Roscello contacted a representative of the IAM and sought to file a grievance over his discharge. A grievance was filed by the Union and denied by the Company on October 17, 1980. On October 20, Roscello's grievance was forwarded to the Union's district office for appeal to the second step.

On October 28, Janet Innes, another Southwest employee in the bargaining unit newly covered by the IAM, was discharged. Unlike Roscello, Innes had joined the IAM. The IAM presented the Innes case at the first step, where it was denied. Later the IAM was successful in informal negotiations which resulted in Innes' reinstatement. After Innes' reinstatement, Southwest refused to discuss any more grievances with the IAM in the absence of a collective bargaining contract.

Roscello filed suit in federal district court alleging that Southwest violated the Railway Labor Act by discharging him for engaging in the protected activity of union organizing. 2 In the same suit Roscello claimed that the IAM had violated its duty of fair representation under the Railway Labor Act by discriminating against him because he was not a member of the Union. 3 From the Company, the plaintiff sought reinstatement, back pay and punitive damages. From both defendants, the plaintiff sought compensatory damages for mental anguish, prospective damages for wages and benefits, pre-judgment interest on lost earnings and any alternative relief the court deemed appropriate. The district court held that the plaintiff had failed to prove his case against either defendant by a preponderance of the evidence and entered judgment for the defendants.

In this court, the plaintiff argues, inter alia, that the district court erred in refusing to grant his timely demand for a jury trial. If the plaintiff did not have a right to a jury trial, we must adopt the judge's factual conclusions because they are not clearly erroneous. If, however, Roscello was entitled to a jury trial, we must decide whether the denial of that right was harmless error, or whether the case must be remanded for a jury trial.

II. RIGHT TO A JURY TRIAL
A. The Duty of Fair Representation

Roscello clearly had a right to a jury trial on the fair representation aspect of his suit. A recent Fifth Circuit case not cited by the parties squarely holds that under the Seventh Amendment to the Constitution there is a right to a jury trial of a claim that a union violated its duty of fair representation. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir.1979). In Cox, the court cited Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), for the proposition that the Seventh Amendment preservation of the right to trial by jury "in suits at common law" encompasses suits in which legal rights are to be determined, in contrast to those in which equitable rights and remedies alone are involved. 607 F.2d at 142. The Cox court applied the three factors set out in Ross for deciding whether there is a right to jury trial: (1) the customary manner of trying such a cause before the merger of law and equity; (2) the kind of remedy sought; and (3) the practical abilities and limitations of juries. 90 S.Ct. at 738 n. 10. The court found that (1) Cox's duty of fair representation claim was analogous to a common law tort customarily tried to a jury; (2) Cox sought the traditional legal remedy of damages; and (3) a jury could adequately find the facts and award damages. The court therefore concluded that the plaintiff had a right to a jury trial. 607 F.2d at 143.

Although the Cox case involved a claim under the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 141-187, rather than the Railway Labor Act, the distinction is insignificant. The Union's duty of fair representation was originally derived from the Railway Labor Act, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), (citing Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)), and was later extended to unions certified under the NLRA. Vaca 87 S.Ct. at 910 (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). Since the Huffman case, the union's duty of fair representation has been the same duty whether the union involved is covered by the NLRA or the RLA. See, e.g., International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970); Seymour v. Olin Corp., 666 F.2d 202 (5th Cir.1982); Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir.1981), cert. denied, 454 U.S. 892, 102 S.Ct. 386, 70 L.Ed.2d 206 (1981). Accordingly, the Cox analysis establishing the right to a jury trial in NLRA cases applies with equal force to RLA duty of fair representation cases.

B. The Wrongful Discharge Action

We need not decide whether a wrongful discharge action under the Railway Labor Act is one in which a plaintiff is entitled to a jury trial under the criteria of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). The Supreme Court mandated in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), that where both legal and equitable issues are presented in a single case, "only under the most imperative circumstances can the right to a jury trial be lost through prior determination of equitable claims." Id. at 957. The factual issues common to the legal and the equitable claims must be submitted to a jury for decision on the legal claims before final court determination of the equitable claims. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 900-01, 8 L.Ed.2d 44 (1962).

Assuming that an action for reinstatement and back pay is equitable in nature, Harkless v. Sweeny School District, 427 F.2d 319 (5th Cir.1970), cert. denied 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439, and that this action has not automatically been converted into a legal one by adding unsupported allegations of compensatory and punitive damages, Lynch v. Pan American World Airways, Inc., 475 F.2d 764 (5th Cir.1973), what we have in this case is a legal claim--the fair representation claim--joined with an equitable claim--the wrongful discharge claim. Since a union may refuse to prosecute a nonmeritorious grievance, Vaca v. Sipes, Del Casal v. Eastern Airlines, the issue of whether the plaintiff was in fact wrongfully discharged is common to both the wrongful discharge action and the fair representation action. Following Beacon Theatres and Dairy Queen, we hold that the trial court must submit to the jury the factual issues common to the wrongful discharge and the fair representation claims before the court makes a final determination on Roscello's wrongful discharge action. See also Eli Lilly and Company v. Generix Drug Sales, Inc., 460 F.2d 1096, 1107 (5th Cir.1972).

III. EFFECT OF THE DENIAL OF A JURY TRIAL

Since we have decided that Roscello was entitled to a jury trial on the fair representation claim and on the facts common to the wrongful discharge and fair representation claims, we must decide the effect of the denial of that right. If all of the evidence, viewed most favorably to Roscello, would have withstood a motion for a directed verdict, 4 the error of refusing a jury demand cannot have been a harmless one. See Cox, 607 F.2d at 144. Our standard for determining whether the evidence was sufficient to go to a...

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