Soto Segarra v. Sea-Land Service, Inc.

• Decision Date: 11 August 1978
• Docket Number: AFL-CI,Nos. 78-1047,SEA-LAND,78-1048,D,s. 78-1047
• Citation: 581 F.2d 291
• Parties: 99 L.R.R.M. (BNA) 2198, 84 Lab.Cas. P 10,795 Cruz SOTO SEGARRA, Plaintiff, Appellee, v.SERVICE, INC., Defendant, Appellee. Appeal of I. L. A., LOCAL 1575,efendant. Cruz SOTO SEGARRA, Plaintiff, Appellee, v. I. L. A., LOCAL 1575,efendant, Appellee. Appeal ofSERVICE, INC., Defendant.
• Court: U.S. Court of Appeals — First Circuit

Page 291

581 F.2d 291

99 L.R.R.M. (BNA) 2198, 84 Lab.Cas. P 10,795

Cruz SOTO SEGARRA, Plaintiff, Appellee, v. SEA-LAND SERVICE, INC., Defendant, Appellee.

Appeal of I. L. A., LOCAL 1575, AFL-CIO, Defendant.

Cruz SOTO SEGARRA, Plaintiff, Appellee, v. I. L. A., LOCAL 1575, AFL-CIO, Defendant, Appellee.

Appeal of SEA-LAND SERVICE, INC., Defendant.

Nos. 78-1047, 78-1048.

United States Court of Appeals First Circuit.

Argued June 9, 1978.

Decided Aug. 11, 1978.

Nicolas Delgado Figueroa, Santurce, P. R., for appellant, International Longshoremen's Ass'n, Local 1575, AFL-CIO.

Radames A. Torruella, San Juan, P. R., with whom Reinaldo Ramos Callazo, and McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, San Juan, P. R., were on brief, for appellant, Sea-Land Service, Inc.

Demetrio Fernandez, Rio Piedras, P. R., on brief, for appellee, Cruz Soto Segarra.

Before CAMPBELL and BOWNES, Circuit Judges, and PETTINE, Chief District Judge. ^*

PETTINE, Chief District Judge.

This seemingly ancient litigation involves the discharge of appellee Cruz Soto Segarra by his employer, appellant Sea-Land Service, Inc. on December 12, 1968 and the subsequent failure by appellant Local 1575 of the International Longshoremen's Association to process appellee's grievance. The suit for damages initiated by the discharged employee in a Commonwealth of Puerto Rico court was removed to federal district court with jurisdiction premised on 29 U.S.C. § 185 (1970). The district judge found that Local 1575 had breached its duty of fair representation by its arbitrary, discriminatory and bad faith failure to process Soto Segarra's grievance and awarded appellee $30,000 in "mental damages" plus attorney's fees. As a consequence of the court's finding that appellee had sufficiently attempted to exhaust the grievance mechanism provided in the collective bargaining agreement, the federal suit was also maintainable against the employer to redress the discharge claimed to be in violation of the collective bargaining agreement. The court below found that the evidence did not support the employer's version of the incident that formed the basis of the discharge and, therefore, the discharge was a breach of the collective bargaining agreement. The district judge awarded back pay and ordered reinstatement. The judge's findings and the amount and type of relief are now before us on appeal.

I. FACTS

Soto Segarra had worked as a stevedore for Sea-Land or its predecessor from 1958 until the time of discharge. He was a member of the union until his expulsion in 1964. Thereafter, he became a leading critic of the Local, focusing particularly upon its management of pension fund monies. At the time of the discharge the Local had been placed under a trustee by the International pending a fraud investigation. Without doubt, Soto Segarra and the officials of the Local harbored an intense animosity toward and distrust of one another.

The incident that prompted Soto Segarra's discharge took place on December 11, 1968. A Sea-Land supervisor had instituted a new policy regarding notice prior to quitting work early on a given day. Soto Segarra and a fellow worker went to Sea-Land's office to protest the policy as inconsistent with the bargaining process and agreement. Sea-Land charged that Soto Segarra's protest grew loud, profane, offensive and physical, to the point where a policeman was ultimately called to remove the protesters. Immediately afterwards. Soto Segarra was not called for work that afternoon with the gang of other senior stevedores. According to Sea-Land, a brief work-stoppage ensued at Soto Segarra's instigation. The following day, Sea-Land, by letter dated December 12, informed Soto Segarra and the Local that he was suspended without pay pending a hearing.

Although no longer a member of the union, Soto Segarra was still covered by the bargaining agreement and subject to its provision for exclusive representation by the union in grievance and arbitration proceedings. Consistent with the agreement, therefore, by certified letter mailed December 13, Soto Segarra requested the Local to process his discharge grievance. Despite denial, it appears that the letter was received by the Local agent on December 19. On December 16, by letter addressed to a Sea-Land supervisor, Soto Segarra requested a meeting with Sea-Land to discuss his discharge "with the assistance of my attorney."

Appellee received no response to either letter, even though the deadlines for processing grievances as specified in the collective bargaining agreement had expired. He appointed a committee of three coworkers to represent him. According to uncorroborated trial testimony, one of the three approached the Local and requested that it initiate the grievance process, but the Local's agent refused. The company also refused to negotiate with the committee without at least an opportunity for the union to be present.

Faced with Sea-Land's refusal to meet on January 20, 1969, Soto Segarra again addressed a written request for a grievance hearing to the Local but, at the same time, implied that his committee would be present. This letter received a prompt response from the Local, which offered to process his grievance but on the condition that the union, not Soto Segarra, select his representative at the grievance hearing, as provided in the collective bargaining agreement.

In February, the exchange of letters and telegrams continued between the Local and Soto Segarra's attorney, with only partial agreement on the selection of a representative. Soto Segarra then took his cause to International officials who contacted both Sea-Land and the Local and urged Soto Segarra's reinstatement.

Contradictory testimony was introduced with regard to whether the Local ever did in fact attempt to raise Soto Segarra's claim before an informal meeting of the grievance committee in May. The trial judge believed appellee that no such meeting or attempt actually occurred. Appellee's final letter to the Local, dated May 10, 1969, requested a meeting with the Local representative in the presence of the vice-president of the International in an effort to quickly resolve his discharge. To this letter he received no response.

On June 3, 1969, appellee filed charges of unfair labor practices against Sea-Land and the Local with both the national and local labor relations boards. Both agencies refused to issue complaints. ¹ Appellee then filed the present action in early September, 1969.

II. EXHAUSTION OF THE GRIEVANCE PROCEDURE: LOCAL'S BREACH OF DUTY OF FAIR REPRESENTATION

An aggrieved employee covered by a collective bargaining agreement which provides exclusive remedies for breaches of that agreement, must attempt to exhaust those contractual remedies before initiating suit. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Failure to exhaust is excused if the union, by breach of its duty of fair representation, prevented the employee from exhausting those remedies. Vaca v. Sipes, supra, 386 U.S. at 184-86, 87 S.Ct. 903; De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 283 (1st Cir.), Cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114 (1970). That duty of fair representation is breached if the union treats the grievance in an arbitrary, discriminatory or bad faith manner. For example, the union "may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion". Vaca v. Sipes, supra, 386 U.S. at 190-91, 87 S.Ct. at 917.

Both appellants characterize their posture in these exchanges as willing at all times to follow the grievance mechanism as provided in the bargaining agreement but that appellee either passively or actively resisted by his constant attempts to secure representation of his own choosing. In contrast, appellee insists that these exchanges evidence both his repeated efforts to exhaust the grievance procedure and the Local's silent refusal and continuing failure to take any action. The trial judge adopted appellee's view.

This Court has had previous occasion to instruct appellee Soto Segarra with regard to when attempts to exhaust are sufficient to permit side-stepping the grievance mechanism provided by the bargaining agreement. In two other decisions involving a wage claim grievance brought by Soto Segarra, this Court found in accordance with the district court that Soto Segarra's efforts were wanting. In the first case, Cruz Soto Segarra v. Sea-Land Service and ILA, Local 1575, Memorandum Op. No. 72-1032 (1973), Soto Segarra made no demand on the union to initiate grievance procedures. The Court rejected the proffered justification that the Local's failure to process the discharge grievance involved in the instant matter and Soto Segarra's non-union status excused any attempt to obtain union assistance. Soto Segarra brought a second suit when the union, following its offer to process his grievance, failed to take any positive action. However, this Court again agreed with the district court, Cruz Soto Segarra v. Sea-Land Service and ILA, Local 1575, Memorandum Op. No. 74-8076 (1974), that appellee's own failure to follow up on the Local's offer to meet with him to prepare his case constituted insufficient exhaustion. Grievance proceedings were still available to him and there was no reason to anticipate that the union would not fairly represent him despite their mutual hostility.

Contrary to the previous case, it was the union in the instant matter who failed to respond to appellee's request to process his grievance until a second request was made some 40 days later, well after the expiration of the 12-day period specified in the collective bargaining agreement. Appellee's final letter also received no reply even though, as the letter stressed, appellee was suffering extreme hardship from his prolonged unemployment. The Local's silence was matched...