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December 13, 1973

John H. DeBELSEY, Sr. and Harry Broomall
CHEMICAL LEAMAN TANK LINES, INC. and Local Union 312, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

Broderick, District Judge.

The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

This is an action in which the plaintiffs request preliminary and permanent injunctive relief in connection with their claim that the defendants wrongfully denied them their seniority for the period during which they were lease operators. The plaintiffs base their claim on the ground that the defendant union breached its duty of fair representation. The issue presented is whether the defendant, Local Union 312 (Local 312), breached the duty of fair representation in its processing of the grievances of employee-plaintiffs, John H. DeBelsey, Sr. and Harry Broomall, concerning their seniority status as truck drivers in the employ of defendant, Chemical Leaman Tank Lines, Inc. (Leaman).

 The complaint in this action was filed on May 21, 1973. On June 5, 1973 the Court consolidated the trial of the action on the merits with the hearing on the motion for a preliminary injunction and scheduled the consolidated trial for June 19, 1973. The parties agreed that pending the Court's decision on the matter that the plaintiffs would remain at the Essington Terminal.

 The parties stipulated in open court that the grievances filed by the plaintiffs request the identical relief that is desired in the instant suit. At the outset of the trial the Court, with the consent of the parties, limited the issue at the hearing to a determination of whether Local 312 breached its duty of fair representation in the manner in which it processed plaintiffs' grievances. It was agreed that testimony would not be taken as to whether the promise of seniority was made and as to the damages which plaintiffs may have suffered, unless and until the Court determined that Local 312 had breached its duty of fair representation.

 Plaintiffs, John DeBelsey, Sr. and Harry Broomall, were originally employed by Leaman, an employer within the meaning of the Labor Management Relations Act, 29 U.S.C. §§ 142(1), (3) and 152(2), as truck drivers on February 23, 1950 and April 14, 1954 respectively. Plaintiffs allege that the union which was the collective bargaining representative for the employees during the period from 1957 through 1959 and the employer, Leaman, induced plaintiffs, John DeBelsey, Sr. and Harry Broomall, to become lease operators in December 1957 and November 1959, respectively, in return for a promise by Leaman and the predecessor union that they would retain their seniority rights with the company as of their original employment date. Plaintiffs became lease operators in 1957 and 1959 respectively and retained their seniority status with the company until 1966, when the defendant, Local 312, a labor organization in an industry affecting commerce within the meaning of Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, became the recognized collective bargaining representative. At that time these plaintiffs as lease operators were placed on a separate seniority list which gave them secondary work rights vis-a-vis company employees, pursuant to a collective bargaining agreement.

 Plaintiffs are and have been dues-paying members of Local 312 from its recognition as the collective bargaining agent, but as lease operators they did not receive the seniority rights or voting privileges enjoyed by union members in the employ of Leaman during the period when they were lease operators. Plaintiffs remained lease operators until September 1972, when they were given the option of transferring their equipment from the Essington Terminal to the Croyden Terminal (fifty miles away) or terminating their leases and returning as company employees at the bottom of the seniority list. Plaintiffs chose the latter option and became employees of Leaman on September 11, 1972.

 Local 312 is the recognized collective bargaining representative for the drivers and maintenance personnel employed by the defendant Leaman at its Essington Terminal, including the plaintiffs. Local 312 and Leaman are parties to a multi-employer-union collective bargaining agreement entitled the "Eastern Area Tank Haul Agreement," (Agreement), as well as the Local 312 Supplement attached thereto. The Agreement and Local 312 Supplement control the wages, hours, working conditions and seniority rights of all drivers and maintenance personnel at the Essington Terminal.

A decision of the majority of a panel of the Joint Committee shall be final and binding on all parties.

 On September 26, 1972 plaintiffs filed grievances with Edward Kinsley, the Chief Shop Steward (Chief Steward), pursuant to the Agreement. The grievances were based upon the alleged promise made by Leaman and the predecessor union that the plaintiffs would not lose their seniority when they became lease operators, and requested restoration of seniority according to their original employment dates.

 The grievances were accepted by Local 312 and submitted to the first step of the grievance procedure. A meeting was held which was attended by the Chief Steward, two assistant stewards, and Melvin Jones, Leaman's Essington Terminal Manager (Terminal Manager). The Terminal Manager and the Chief Steward could not agree on a resolution of the grievances. This forced the grievances into the second step of the procedure.

 At the second step of the procedure, the grievances were considered by Edward Burke, President and Business Agent (Business Agent) for Local 312, and the Chief Steward, the Terminal Manager and Mr. Hasset, a labor relations representative for the employer, Leaman. The grievances were discussed on the merits, but again labor and management could not agree on a disposition of the grievances which was satisfactory to both parties. This forced the grievances to the Joint Committee, the third step in the grievance procedure.

 The Business Agent of Local 312 argued the grievances before the Joint Committee on November 21, 1972, contending that the plaintiffs should be given seniority rights in accordance with their original date of employment, as they had been promised. The minutes of the Joint Committee reflect that the Business Agent stated that: "The grievant was promised that he would maintain his seniority rights." The Joint Committee denied the plaintiffs' claim for seniority and stated:

When the grievants became owner-operators, they lost their status as seniority employees and had priority in accordance with the date on their lease. When the lease was cancelled and on their own exercise of the option either to go to Croyden as an owner-operator or become a seniority employee, their exercise of the option to become a seniority employee gave them seniority at ...

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