Thomas v. United Parcel Service, Inc.

• Decision Date: 20 November 1989
• Docket Number: No. 88-2184,88-2184
• Citation: 890 F.2d 909
• Parties: 132 L.R.R.M. (BNA) 3052, 58 USLW 2391, 113 Lab.Cas. P 11,697 Joseph D. THOMAS, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC. and Local 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 909

890 F.2d 909

132 L.R.R.M. (BNA) 3052, 58 USLW 2391,

113 Lab.Cas. P 11,697

Joseph D. THOMAS, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC. and Local 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants-Appellees.

No. 88-2184.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1989.

Decided Nov. 20, 1989.

Gilbert A. Cornfield, Richard J. Tupper (argued), Gail E. Mrozowski, Cornfield & Feldman, Chicago, Ill., for plaintiff-appellant.

Steven H. Adelman (argued), Michael N. Petkovich, John A. McDonald, Keck, Mahin & Cate, Sherman Carmell, Carmell, Charone, Widmer, Mathews & Moss, Barry M. Bennett (argued), Asher, Gittler & Greenfield, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

The appellant, Joseph D. Thomas, was discharged by his employer, the United Parcel Service, Inc. ("UPS"), and filed a grievance with his union, Local 710 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 710" or "the Union"). The appellant appeared before a Joint Grievance Committee ("JGC" or "the Committee") comprised of an equal number of union and management representatives, but the Committee, as the final arbiter of employment-related disputes, denied the appellant's petition and upheld his termination. The appellant subsequently brought suit in federal district court pursuant to Sec. 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. Sec. 185 (1947), alleging that UPS had violated the terms of the collective bargaining agreement then in effect by discharging him from its employ without just cause and that Local 710 had breached its duty of fair representation in processing his grievance petition. The district court granted summary judgment in favor of the defendants and this appeal ensued. We now vacate the summary judgment order and remand the case to the district court.

I.

The appellant, Joseph D. Thomas, was hired by United Parcel Service, Inc. as a tractor-trailer driver during the 1983 Christmas season and began work on a permanent basis as an on-call feeder driver in April 1984. ¹ UPS requires its feeder drivers to be available for work during certain specified periods, with failure to respond to a call constituting grounds for dismissal.

On January 10, 1986, the appellant approached former UPS Feeder Division Manager Martin Heise to request a two-week vacation. Mr. Heise approved the vacation request and informed the appellant that he would be oncall beginning January 27, 1986. The appellant was ultimately unavailable for work from January 27 to January 31, 1986. In a letter dated January 31, 1986, UPS informed the appellant that future instances of unavailability could lead to his discharge from the company.

Upon receiving the January 31 UPS letter, the appellant filed a grievance with Local 710 and made a written request for UPS documents. In a meeting with Local 710 business representative Robert Falco, the appellant also requested a copy of the rules governing JGC procedures. Mr. Falco told the appellant that he was unaware of the existence of any formal printed rules regarding JGC hearings, but forwarded the request for documents to UPS. UPS agreed to provide the documents on the day of the hearing, in accordance with UPS policy. Mr. Falco did not press the appellant's demand for documents, deferring instead to the UPS decision. Mr. Falco subsequently failed to inform the appellant of the UPS response to his request and the UPS policy with respect to documents.

At the JGC hearing, the appellant was given an opportunity to explain the reason for his unavailability from January 27-31, 1986 before the members of the Committee. The appellant maintained that he believed that he had been granted vacation for the week of January 27th and therefore should not have been disciplined for a legitimate misunderstanding between Mr. Heise and himself. Mr. Falco supported the appellant in his grievance request, but the JGC denied the appellant's petition.

On March 27, 1986, the appellant was issued a one-day suspension for violating a UPS rule regarding the number of consecutive hours an employee may work. The next month, on April 25, 1986, UPS left a pair of messages with the appellant's paging service, but the appellant failed to respond to either call. UPS Feeder Division Manager Dan Torrez met with the appellant concerning this latest instance of unavailability. The appellant claimed that he had not received the messages due to a malfunctioning "beeper," and that, as such, he was unwilling to accept responsibility for the incident. The appellant received a letter terminating his employment with UPS dated April 30, 1986.

The appellant filed two grievance petitions, one contesting his suspension and the other his termination, and once again appeared before the JGC. Mr. Falco argued that the one-day suspension in March should be vacated due to certain extenuating circumstances and supported the appellant in his termination grievance. The JGC vacated the appellant's suspension and granted the appellant back pay for the day he had been suspended. As to the discharge petition, the appellant explained why he had been unavailable and why his discharge had not been for "just cause," as required by Article 16 of the collective bargaining agreement. The Committee nevertheless upheld the UPS discharge decision and, under Article 23 of the collective bargaining agreement, the decision of the JGC constituted a final ruling on the matter.

On October 15, 1986, the appellant filed a hybrid Sec. 301/fair representation action in federal district court, alleging that UPS had violated Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, ² by breaching the collective bargaining agreement and that Local 710 had breached its duty of fair representation in processing his grievance petition. The appellant claimed that Local 710 had cooperated with UPS in securing his discharge because of his membership in Teamsters for a Democratic Union ("TDU"), a reform group within the Union.

More specifically, the appellant alleged that, as an active and visible member of TDU, he campaigned for reform candidates running on the EAGLE slate during the 1985 election and later joined others in filing charges with the Secretary of Labor concerning the propriety of that election. During the course of discovery, the appellant learned that from August 1985 to May 1986, the JGC granted 192 of 585 grievance petitions filed by "non-dissident" union members (32.8%) and but 3 of the 19 petitions filed by dissident members (15.8%). A statistical analyst concluded that such a discrepancy reflected a less than five percent probability that chance accounted for the JGC decisions. The appellant also discovered that Mr. Falco, his representative at each of the JGC hearings, had participated in anti-TDU demonstrations and signed a leaflet opposing a TDU reform proposal. When coupled with Mr. Falco's failure to conduct an independent investigation of the facts underlying the various grievance petitions filed by the appellant, to request documents as authorized by the collective bargaining agreement, and to inform the appellant of the rules governing JGC hearings, these acts and omissions constituted a breach of the union's duty of fair representation. As to James Dawes and John O'Connor, the two union officials sitting on the May 9, 1986 JGC, the appellant submitted evidence that Messrs. Dawes and O'Connor signed the same anti-TDU leaflet signed by Mr. Falco and that each had participated in the anti-TDU demonstrations. Furthermore, Mr. O'Connor had stated at one point that: "The union will not do a damn thing for [those] affiliated with Teamsters for a Democratic Union."

Both the Union and UPS moved for summary judgment at the close of discovery, with the Union submitting evidence that, in the case of Mr. Falco, his representation of the appellant was not atypical. Mr. Falco swore that he ordinarily does not conduct an independent investigation or challenge UPS policy regarding the presentation of documents on the day of the JGC hearing. Mr. Falco discussed the bases for the grievances with the appellant and supported his arguments before the Committee, thereby making his representation of the appellant materially indistinguishable from that offered to other grievants before the Committee, whether dissident or non-dissident. The Union also argued that the appellant failed to submit any direct evidence of bias against him by either Mr. Dawes or Mr. O'Connor and therefore failed to establish a breach of the Union's duty of fair representation.

The district court, relying on this Circuit's intentional misconduct standard enunciated in Hoffman v. Lonza, Inc., 658 F.2d 519, 520 (7th Cir.1981), ruled that Mr Falco's effort "may show poor representation, but it does not show hostile motivation or intentional misconduct." Thomas v. United Parcel Service, Inc., No. 86 C 7188, mem. op. at 4, 1988 WL 58598 (N.D.Ill. May 26, 1988). As to the statistical and other evidence of anti-TDU bias exhibited by JGC members Dawes and O'Connor, the court found it "unnecessary to consider" such evidence, id. at 3-4, ³ inasmuch as the "purported bias of the JGC [was] not a material fact." Id. at 7. Since the Union officials on the JGC did not owe union members appearing before the Committee a duty of fair representation, there could be no breach of that duty. Id. at 5. As a result, the district court granted the defendants' motions for summary judgment and entered judgment in favor of the defendants on May 26, 1988. The appellant filed a timely notice of appeal on June 23, 1988 and this appeal ensued. We have jurisdiction pursuant to Sec. 301(a) of the LMRA, 29 U.S.C. Sec. 185(a), and 28 U.S.C. Sec. 1291.

II.

"Our review...