Smith v. Babcock & Wilcox Co., Refractories Div., Augusta, Ga.

• Citation: 726 F.2d 1562
• Decision Date: 16 March 1984
• Docket Number: No. 82-8654,82-8654
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: 115 L.R.R.M. (BNA) 3349, 100 Lab.Cas. P 10,859 Melvin SMITH, Plaintiff-Appellant, v. BABCOCK & WILCOX COMPANY, REFRACTORIES DIVISION, AUGUSTA, GEORGIA, et al., Defendants-Appellees.

Page 1562

726 F.2d 1562

115 L.R.R.M. (BNA) 3349, 100 Lab.Cas. P 10,859

Melvin SMITH, Plaintiff-Appellant, v. BABCOCK & WILCOX COMPANY, REFRACTORIES DIVISION, AUGUSTA GEORGIA, et al., Defendants-Appellees.

No. 82-8654.

United States Court of Appeals Eleventh Circuit.

March 16, 1984.

Jack L. Cooper, Augusta, Ga., for plaintiff-appellant.

J. Thomas Kilpatrick, Atlanta, Ga., for Babcock & Wilcox Co.

Michael C. Garrett, Augusta, Ga., for Local 1137.

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

Before VANCE and CLARK, Circuit Judges, and SWYGERT ^*, Senior Circuit Judge.

PER CURIAM:

Appellant Smith complains of the grant of summary judgment by the district court in favor of the appellees Babcock & Wilcox Company, appellant's employer, and Industrial Maintenance and Production Workers Local No. 1137, the union to which appellant belonged. In the district court, Smith sought relief pursuant to Sec. 301(a) of the Labor Relations Management Act, 1947, 29 U.S.C. Sec. 185(a). Our independent review of the evidence viewed in the light most favorable to the plaintiff and our study of the applicable law convinces us that the district court's decision, 549 F.Supp. 190, was correct and we affirm.

Appellant raises two issues on appeal, that he is entitled to bring a Sec. 301 action against the union and the company because the facts of the case reveal a serious flaw in the collective bargaining process and that he has a right to present his freedom of speech claim with regard to his expulsion from the union in this suit. In order to answer these arguments, it is necessary to understand the sequence of events which led to this appeal. After Smith's discharge by his employer Babcock on March 24, 1980, he sought reinstatement pursuant to the collective bargaining agreement between the employer and the union which provided a grievance and arbitration procedure for the settlement of employee-employer disputes. When Smith reported his discharge to the union, it immediately filed a grievance against the employer which led to Smith's reinstatement, in approximately two weeks, on a different job. Because the new assignment was on a different shift and involved more arduous work, Smith again sought help from the union in remedying what he considered unfair treatment on the part of the employer. As a result, the union requested arbitration on the issue of whether the company violated the collective bargaining agreement by transferring Smith to a different department. An arbitration hearing was held on November 10, 1980. On March 13, 1981, the arbitrator issued his decision requiring the company to reinstate Smith to his former position. In response, the company notified the union that Smith's job had been abolished. The company then requested the union to resubmit to arbitration the issue of what job Smith should be given. On March 17, 1981, the plaintiff began to picket the union, carrying a sign which read "Union Unfair to Union Member." On March 27, 1981, the trial board met and recommended the expulsion of Smith because of his picketing. On April 7, 1981, the union membership voted to expel Smith. Rather than resubmit the issue of another job for Smith to arbitration, the union filed suit on May 11, 1981 in district court to enforce the arbitrator's award of March 13. On May 22, 1981, the district court entered an order remanding the award back to the arbitrator for a determination of whether it was impossible for the company to reinstate Smith to his former job, whether the company had the right under the collective bargaining agreement to abolish the job, whether the company's position on this issue was in good faith and what position Smith should be given. When neither counsel for the union nor counsel for the company arranged for the resubmission of the matter in accordance with its order, the district court entered another order on February 19, 1982 compelling the parties to submit the questions detailed in the May 22 order to the arbitrator. On May 15, 1982, the arbitration was finally concluded when the arbitrator rendered his second award which resulted in Smith's reinstatement to his previous job on the same shift with no loss of seniority and full reimbursement for his loss of earnings. Babcock complied with the arbitrator's decision. The district court then entered an order on August 13, 1982 which provided for the enforcement of the arbitrator's second award.

On August 6, 1981, before the matter had been resubmitted by counsel to the arbitrator, Smith sued the union and the employer claiming bad faith, the union for ineffective representation on the part of the union, and the employer for delaying the arbitration proceeding, abolishing his original job and breaching the collective bargaining agreement. Recognizing the exclusiveness of the remedy provided by the arbitration procedure, Smith nevertheless sought damages, relying on Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).

Prior to enactment of the National Labor Relations Act in the 1930s, an employee had no remedy against an employer for a wrongful discharge unless the employer had a personal contract with the employer which the employer had breached. Passage of that Act gave legal recognition to the status of a labor union to represent its members in a dispute with an employer. Later, as articulated in 29 U.S.C. Sec. 171, a policy was established providing for the final adjustment of grievances between employees and employers through the use of collective bargaining, conciliation, arbitration, and other prescribed remedies. Congress declared in Sec. 203(d), 29 U.S.C. Sec. 173(d), that final adjustment of disputes by a method agreed upon by the parties was a desirable method for settlement of grievance disputes. That congressional policy "can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play." United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1404 (1960). When a collective bargaining agreement provides a mechanism for grievance settlement through binding arbitration, a decision by the arbitrator may not normally be reviewed in the federal courts. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424, 1429 (1960). When grievance disputes proceed to the arbitration provided for in the collective bargaining agreement, however, the union has the obligation to fairly represent the interests of the employee. If the union breaches that duty of fair representation, the finality rule regarding arbitration decisions is lifted and so is the bar to federal court review. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231, 245 (1976); Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th Cir.1982).

Hines allows an employee to go behind a final and binding award under a collective bargaining agreement and seek relief against his employer and union only if he demonstrates that his union has breached its duty. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 61, 101 S.Ct. 1559, 1563, 67 L.Ed.2d 732, 739 (1981). The indispensable predicate for a Sec. 301 action, therefore, is a showing that the union has breached its statutory duty of fair representation. See Diaz v. Schwerman Trucking Co., 709 F.2d 1371, 1376 (11th Cir.1983). Such a showing can be made by proving that the union's handling of a grievance is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842, 857 (1967); Harris, supra, 668 F.2d at 1206. Smith points primarily to the delay by the union in initially taking his claim to arbitration and later in resubmitting the grievance to the...