Rose v. Bridgeport Brass Company

• Decision Date: 26 October 1973
• Docket Number: No. 72-1196.,72-1196.
• Citation: 487 F.2d 804
• Parties: Mary Jeanne ROSE, Plaintiff-Appellant, v. BRIDGEPORT BRASS COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

487 F.2d 804 (1973)

Mary Jeanne ROSE, Plaintiff-Appellant, v. BRIDGEPORT BRASS COMPANY et al., Defendants-Appellees.

No. 72-1196.

United States Court of Appeals, Seventh Circuit.

Argued February 28, 1973.

Decided October 26, 1973.

Norman P. Metzger, Ronald Elberger, Indianapolis, Ind., for plaintiff-appellant.

Michael R. Maine, Charles L. Whistler, Keith C. Reese, Indianapolis, Ind., Carl Frankel, Pittsburgh, Pa., Michael H. Gottesman, Washington, D. C., for defendants-appellees.

Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.

SWYGERT, Chief Judge.

Mary Jeanne Rose filed in the district court a complaint against Bridgeport Brass Company, the United Steel Workers of America, and Local 4266 of the same union. Citing provisions of Title VII of the Civil Rights Act of 1964,¹ and of a collective bargaining agreement entered into by the Company and the Local, Rose sought damages for and injunctive relief from sex discrimination allegedly practiced to her detriment by the Company. An additional claim was that the defendant labor organizations had not, as to her, fulfilled their mutual duty of fair representation. After the defendants had filed motions to dismiss, and after the district judge had elected under Rule 12(b) of the Federal Rules of Civil Procedure to treat these as summary judgment motions, summary judgment was entered against Rose on all facets of her complaint. The propriety of this summary judgment is what Rose questions on appeal.

I

In her complaint, Rose sets out the following facts: On or about October 15, 1969, Rose held the job classification of blanking press operator within Department 359 of the company. On that date, due to illness and an order from her doctor, she was granted an authorized leave of absence from her employment. Over a year later, on October 28, 1970, Rose sought to return to work, having obtained on that date a work release from the Company doctor for light duty involving the physical lifting of no more than forty pounds. The Company informed her that no jobs were available anywhere in the plant. Two days later, the Company laid off some forty-seven employees of Department 359 on the basis of their junior plantwide seniority. More senior employees from other departments were awarded the jobs thereby vacated. At least two of the vacancies in Department 359 were given to employees of the male sex despite the fact that they were lower on the plantwide seniority ladder than Rose. She made no attempt to secure these positions, having been told by the Director of Industrial Relations, Robert Stultz, that the Company viewed her to be an "inactive employee" without a right to the open jobs.

The complaint goes on to state that the award to less senior men of jobs created by the October 30 layoff was sexual discrimination in violation of law and contract. Rose complains, too, that she would have been permitted to return to her job as a blanking press operator on October 28, had not the Company, sometime during the interim of her sick leave, redefined the job classification of blanking press operator to include what had formerly been the tasks of both a blanking press operator and a blanking press helper. The new job required a worker capable of lifting eighty pounds, far more than Rose was allowed to lift by the terms of her work release. The reclassification, according to Rose, was undertaken by the Company "willfully and intentionally to make it physically impossible for her and other members of the female sex to perform the tasks required under the new job classification," again, a violation of contract and statute by the Company. In support of the claim, the complaint reveals that Department 359 had in 1969 approximately thirty female employees out of an approximate total workforce of seventy-five; of these women, at least twenty-three had been blanking press operators. In October of 1970, by contrast, the Department employed twelve women out of a contingent of forty, two of whom were blanking press operators.² Finally, Rose complains of the failure of the Company under the collective bargaining contract to allow her on October 28 to displace the least senior employee in the plant from some job other than blanking press operator.

The complaints made about the Union and the Local are these: Rose filed grievances through the Local according to procedures established under Article 19 of the collective bargaining agreement, which set up a five-step sequence for the processing of grievances. The third step was reached on November 17, and the fourth on December 16, two days after Rose had filed a complaint against the Company, the Union and the Local with the Equal Employment Opportunity Commission which alleged, in part, that Rose had not "been fairly repersented sic in good faith by the Union." At the conclusion of unsuccessful discussions at the fourth stage of the grievance machinery, a representative of the Union stated that he would not take the grievance to the fifth step — namely binding arbitration — because he did not personally believe that Rose had been the victim of discrimination by the Company. When, on January 5, 1971, Rose suggested to the president of the Local that the Union was not behind her, he replied: "That's right!"

Rose, on January 13, 1971, went on to file an affidavit with the National Labor Relations Board, accusing the Company and the labor organizations of sex discrimination in violation of section 8 of the National Labor Relations Act. Rose also complained to the Indiana Civil Rights Commission on February 3, 1971. Neither plea resulted in any agency action, however; the Regional Director of the NLRB felt that evidence of discrimination was not sufficient to justify his issuance of a complaint, and the Indiana agency declined jurisdiction. Rose subsequently was informed on March 24, 1971 that an arbitration of her grievance was to take place on April 2, 1971. At that proceeding, the representatives of the labor organizations did not raise the issue of sex discrimination though, Rose states, "that was the basis of her grievance filed on November 2, 1970." The complaint concludes that these events show that the Union and the Local had "not used their best offices and efforts to resolve plaintiff's grievance based on sex discrimination contrary to Article 19 and Article 3, Section 1 of the collective bargaining agreement" and 42 U.S.C. § 2000e-2(c).

In response to the complaint, the Company filed a motion to dismiss for lack of jurisdiction of the subject matter because, in part, Rose had elected and been denied relief through arbitration before filing her complaint. Attached to the motion was an affidavit executed by Robert Stultz, which included as an exhibit a written decision of the arbitrator who heard and rejected the contractual grievance of Rose which the Union and the Local had finally taken to arbitration. According to Stultz, Department 359 had been closed down in January 1970; its personnel were either reassigned to jobs in other departments or were placed on layoff status. Those employees on layoff were recalled to work in other departments strictly on the basis of their plantwide, not departmental, seniority. Department 359 was reopened on a limited basis in May 1970, with a complement of sixteen employees chosen on the basis of their plantwide seniority. When Rose applied for work as a blanking press operator on October 28, 1970, she, according to Stultz, was denied the position (1) because she was not physically qualified for the job, and (2) because her plantwide seniority did not entitle her thereto. Rose was again denied a job on October 30 — after a general layoff at the plant which required a reassignment of jobs to the most senior employees — because the company felt that an employee on leave of absence, like Rose, was not contractually entitled to receive a reassigned job following a layoff.

The arbitration decision attached to the Stultz affidavit reveals that the arbitrator was fully in agreement with the position of the Company as to the events of October 30. With respect to Rose's earlier attempt to regain her job as a press operator, the arbitrator found:

In Section 3 of Article 18 the only specific reemployment right of returnees from sick leave within one year is to be restored to the jobs "they occupied immediately prior to their absence . . . if appropriate and they are otherwise qualified." In the instant case this contractual option was unavailable (1) because the job had been shutdown on January 16, 1970, and (2) Mrs. Rose was no longer qualified to perform the work because of the weight-lifting restriction.³

The arbitrator likewise found that Rose was not entitled to some other job on October 28:

Since the specific contract provision is inapplicable, we must turn next to the past practice of the parties. The parties have developed a practice based in part at least upon the language of the last sentence of the first paragraph of Section 3 of Article 18. It was agreed at the hearing that if the returnee from sick leave is unable to return to his or her former job, he or she is permitted to bid upon a posted job or to take an open job which in either event he or she is qualified to perform. In the present case no job was posted when Mrs. Rose sought to return to work on October 23, 1970. Neither was there an open job on that date. Accordingly, on that date her status continued as an employee on sick leave.

The Company relied in large part upon the contractual interpretations of the arbitrator in its motion to dismiss. Citing United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), and the rest of the Steelworkers trilogy,⁴ it argued that the arbitrator's findings were binding upon Rose, and that, without a contractual right to the jobs she sought, Rose could not have been discriminated against.

The Union and the Local, too,...