White v. Arco/Polymers, Inc.

• Citation: 720 F.2d 1391
• Decision Date: 12 December 1983
• Docket Number: No. 82-2505,L,No. 4-227,D,AFL-CI,4-227,82-2505
• Parties: 115 L.R.R.M. (BNA) 2332, 99 Lab.Cas. P 10,620, 14 Fed. R. Evid. Serv. 1247 Frank E. WHITE, Plaintiff-Appellee, v. ARCO/POLYMERS, INC. and Oil, Chemical & Atomic Workers Union,ocalefendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1391

720 F.2d 1391

115 L.R.R.M. (BNA) 2332, 99 Lab.Cas. P 10,620,

14 Fed. R. Evid. Serv. 1247

Frank E. WHITE, Plaintiff-Appellee, v. ARCO/POLYMERS, INC. and Oil, Chemical & Atomic Workers Union, AFL-CIO, Local No. 4-227, Defendants-Appellants.

No. 82-2505.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1983.

Baker & Botts, Richard R. Brann, Douglas W. Sanders, Houston, Tex., for ARCO.

Bray & Watson, Patrick M. Flynn, Houston, Tex., for OCAW.

Mandell & Wright, Sidney Ravkind, Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, REAVLEY, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

The district court found that ARCO/Polymers, Inc. (ARCO) fired employee Frank E. White without just cause, in violation of its collective bargaining agreement with the Oil, Chemical & Atomic Workers International Union, Local 4-227, AFL-CIO (OCAW), and that OCAW violated its duty of fair representation to White by dropping his discharge grievance short of arbitration. ARCO and OCAW contend that the district court clearly erred in finding that White was a nonprobationary employee entitled to the protection of the just cause and arbitration provisions of the collective bargaining agreement. We agree. The judgment of the district court is reversed.

I.

On November 11, 1974, White, a black man, began work for ARCO as a probationary Operator Trainee in the Styrene Unit of ARCO's Harris County, Texas petrochemical manufacturing plant. The terms and conditions of White's employment were set by ARCO's 1973-75 collective bargaining agreement with OCAW Local 4-227. That contract provided that new employees, like White, were on probation for the first ninety days worked. Probationary employees were not covered by the "just cause for discharge" and "grievance procedure" provisions of the contract. Management could fire them simply for general dissatisfaction with their progress, efficiency, or attitudes; if it did, they had no right to expect the Union to champion their claims for redress. In mid-February 1975, ARCO and OCAW signed a new two-year collective bargaining agreement. The 1975-77 version of their contract extended the probationary period from ninety days worked to 120 days worked. All other pertinent provisions remained the same. On May 8, 1975, ARCO fired White. It gave as its reasons White's supervisors' reports that White had now shown initiative in learning his duties, that he did not adequately perform the duties assigned to him, and that he did not get along with his co-workers.

White promptly filed a written grievance through OCAW Local 4-227 in which he claimed that his termination was without just cause. The Union pressed White's grievance through the first three steps of the grievance procedure, ¹ but at each step ARCO denied the grievance. At the conclusion of the third step, the Union decided that ARCO was right in contending that White was a probationary employee, concluded that ARCO had shown reasons adequate to justify its decision not to make him a permanent employee, and elected to withdraw the grievance.

In late June 1975, White filed a charge against the Union with the Equal Employment Opportunity Commission (EEOC) claiming that the Union had discriminated against him because of his race. In late August 1976, the EEOC issued a determination finding that no reasonable cause existed to believe that the Union had violated Title VII of the Civil Rights Act of 1964 in the manner alleged. White filed this action the following day.

White's original complaint charged that ARCO and OCAW had discriminated against him on the basis of race, in violation of 42 U.S.C. Sec. 1981, ² and that OCAW had breached its duty of fair representation, in violation of 29 U.S.C. Sec. 151, et seq. White's legal theory supporting the fair representation charge was that, notwithstanding the fact that he had been fired on the last day of the 120-days worked probationary period, he was entitled to the benefit of the 90-days worked probationary period (and thus the just cause and arbitration provisions) of the contract in force at the time he was hired. In November 1980 White filed a proposed pre-trial order and proposed findings of fact and conclusions of law. In both, he admitted that he had been terminated on the final day of the 120-days worked probationary period; in both, he adhered to his assertion that his probationary period ended with his ninetieth day worked. ARCO and OCAW's proposed pre-trial order stated their agreement with White's concession that he had been terminated on the final day of the 120-days worked probationary period. They defended by denying that racial discrimination had played any part in their respective decisions, and by arguing that White's probationary term was governed by the 1975-77 collective bargaining agreement. In September 1981, White filed an amended complaint. It was in all respects identical to his original complaint, except that he added to the paragraph charging OCAW with breach of its duty of fair representation the assertion that "Plaintiff[ ] had a contractual right to be evaluated under the 90-day contract provision, and Defendant ARCO violated that right." At trial, White testified that he was discharged after the expiration of the 90-days worked probationary period which, according to White, was the only probationary period applicable to him. ³ At no time did White testify that his discharge occurred after the 120-days worked probationary period. Neither did any other witness. To the extent that it was discussed, the testimony was to the contrary.

So matters stood until White submitted his post-trial proposed findings of fact and conclusions of law. In that memorandum, White reasserted his earlier-espoused theory that he was legally entitled to consideration under the superseded contract's 90-days worked probationary period. But in addition he contended for the first time that he had completed the 120-days worked probationary period. He calculated the total number of working days elapsed between his first day and his discharge at 125. From that computation and from his claim of right to the original period, he argued that by any measure he was a nonprobationary employee on the date of his discharge. ARCO met White's new factual assertion head on. Apparently eschewing argument that his earlier admissions, and failure to raise this theory during trial, barred its assertion post-trial, it contended that White's computation was erroneous in its failure to deduct holidays and absences in order to arrive at days actually worked.

The district court found that neither ARCO nor OCAW discriminated against White because of his race, and entered judgment for the defendant on White's section 1981 claim. ⁴ But as to his breach of contract and fair representation claims, the district court found for White wholly on the basis of his new theory. Taking judicial notice of the calendar and subtracting weekends and holidays listed in the Union contract, it concluded that White was fired on his 125th day of work. The court buttressed this conclusion by reference to a written evaluation of White made by an ARCO employee and entered into evidence by ARCO, in which the employee stated that he had kept up with the day's work by White and White had "made it" through probation. On the basis of that evidence, the court found that White was a nonprobationary employee on the date of his discharge. The court's legal conclusions rested on that finding. The district court decided that "in making the decision to fire Mr. White, ARCO used standards appropriate for a probationary employee but inappropriate for a permanent employee subject to termination only for just cause." As to OCAW, the district court found that "[t]he Union withdrew the grievance because it accepted without investigation the Company's contention that Mr. White was a probationary employee and therefore not entitled to go through the grievance procedure" and because it believed that "Mr. White was not performing well enough to become a permanent employee." The court concluded that "in accepting without question the Company position that Mr. White was on probation when fired, in failing to ascertain that Mr. White actually had completed probation at the time of his termination, and in dropping his grievance on the unfounded assumption that he was not entitled to go through the grievance procedure, the Union failed to represent Mr. White fairly." It held ARCO liable for breaching the contract and OCAW liable for violating its duty of fair representation to White.

ARCO and OCAW responded with a joint motion for reconsideration. They pointed out that White did not claim, either before or during trial, that he had completed the 120-days worked probationary period, but to the contrary had repeatedly admitted that he was terminated on the final day of that period. They noted that an accurate computation of days worked would require deduction of days absent. Finally, they asked that the court reopen the record to allow them to document the fact that White had not completed the 120-day period. The court refused, stating that it believed that White's pleadings and testimony gave adequate notice that his completion of the 120-day period was at issue; it also rested its decision on ARCO's failure to assert, in response to White's post-trial proposed findings of fact, that the presence of the days-worked issue was a surprise. ARCO and OCAW appeal.

II.

As the district court correctly observed, the burden of adducing adequate, persuasive evidence fell to plaintiff White. In order to prevail on his claims that ARCO breached the Union contract and that OCAW failed fairly to represent him, White first had to establish that he was not a probationary employee and hence was entitled to the protection of the just cause and grievance procedure provisions of...