If the union fails in its duty while presenting the case at arbitration, the individual is not bound by the award. Otherwise, "[wrongfully] discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy." Hines, supra at 571. Quoted in C.W. Summers, The Individual Employee's Rights Under the Collective Agreement; What Constitutes Fair Representation ?, 126 U.Pa.L.Rev. 251, 262 (Dec. 1977).
The union's duty to fairly represent its members is implied from the union's position as sole spokesman for its members. Although the standards are not clearcut, a union violates its duty when its conduct is "arbitrary, discriminatory, or in bad faith," Vaca, supra 386 U.S. at 190; Humphrey v. Moore, 375 U.S. 335, 342, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964), or "there is substantial reason to believe that a union breach of duty contributed to an erroneous outcome." Hardee v. North Carolina Allstate Services, Inc., 537 F.2d 1255 (4th Cir. 1976); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970).
Plaintiff alleged that "Local 470 violated § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, by a breach of their duty of fair representation" and that "Local 470, further failed to vigorously prosecute the grievance filed by plaintiff. . . ." Complaint, para. 9 and para. 15. Plaintiff further alleged that Local 470 "failed to protect his rights through vigorous prosetution (sic) and/or collusive and conspiratorial action between" Local 470 and AAA. Amended Complaint, para. 5.
Plaintiff does not allege that Local 470's actions were "arbitrary, discriminatory, or in bad faith."
Plaintiff was unable, during his deposition on June 6, 1977, to state what Local 470 failed to do during the JLC and JAC hearings which constituted failure to adequately represent him. Johnson stated that his classification was not presented into evidence because his identification card was not presented. However, he admitted that his yardman classification was orally placed into evidence. Deposition of Johnson, pages 86-93.
"The allegations of a complaint alleging the breach of a union's duty of fair representation must contain more than conclusory statements alleging discrimination" in order to be actionable. Balowski v. International U., United A., A. & A., Imp. Wkrs., 372 F.2d 829, 835 (6th Cir. 1967). Quoted in Hubicki v. ACF Industries, Inc., 484 F.2d 519, 526 (3d Cir. 1973); Gainey v. Bro. of Railway Employees, 313 F.2d 318, 323 (3rd Cir. 1963).
In Hubicki, the Third Circuit held that allegations of a complaint asserting breach of a union's duty of fair representation failed to offer concrete facts from which the presence of hostile discrimination could be inferred.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered" if it is shown that there is no "genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Plaintiff's response to Local 470's motion raises six potential factual issues.
1) Did the decision of the JAC draw its essence from the applicable collective bargaining agreement? Plaintiff cites Article 52 of the contract, "Work In Other Classifications", as relevant. Exhibit D to Plaintiff's Answer to Motions for Summary Judgment.
As noted above, the complaint does not demand vacation of the JAC award on the basis of a failure to the committee's award to "draw its essence" from the contract. This matter is not properly before us and is therefore not material to the issue of breach of duty of fair representation. When a breach of the duty is not established, the court will not review the arbitrator's decision. Warren v. Teamsters, 544 F.2d 334, 341 (8th Cir. 1976).
2) Does the decision of the JAC have the same force and effect of an arbitration award? This is not a viable issue since the Supreme Court has clearly stated that a panel award is as enforceable as an arbitration award when it is final and binding. General Drivers v. Riss and Co., supra.
3) Was there improper collusion among the members of the committee panel? As stated above, Johnson has not attacked the committee's decision in his complaint; he has alleged failure of fair representation. Despite this lack of relevance we have reviewed the transcript pages appended to the plaintiff's answer as Exhibit "E". We find that they do not show that the committee members displayed a negative attitude toward Johnson, that they disrespected him, or that they tried to rush him through his presentation.
The transcript shows that it was Johnson who was belligerent toward the panel members and not the opposite. The JAC gave Johnson every opportunity to present his case fully and completely.
Rather than rushing the plaintiff through his case, the panel merely tried to make Johnson focus on relevant matters. For instance, he attempted to discuss occurrences dated more than nine months prior to the contested "voluntary quit." The contract forbade AAA from introducing evidence of an employee's work record more than nine months old. Therefore, plaintiff was correctly limited as to the evidence he could submit.
4) Should Local 470 have brought a grievance on behalf of the plaintiff when it knew that he was being forced to do work outside of his classification? There is no indication that Johnson asked Local 470 to file a grievance over his work assignments prior to the incident in question. In addition, there is no allegation in either complaint concerning Local 470's failure to prosecute an earlier grievance. Therefore, whether the union brought an earlier grievance is not material to the matters at issue.
5) Did Local 470 properly prepare for the JLC and JAC hearings? In Hines the Supreme Court held that the breach of the duty of fair representation requires more than demonstrating "mere errors in judgment." 424 U.S. at 571. Although this question goes to the asserted negligence of Local 470, as opposed to arbitrary and capricious activity, there is no basis to support this issue. The sections of Johnson's deposition cited by plaintiff as Exhibit "A" show that Johnson had opportunity, prior to the second hearing, to inform Local 470 of information not submitted at the first hearing. Johnson failed to do so. Johnson was unable to state any exculpatory details which were not placed before both panels. Johnson did not tell Local 470 at any time, according to his own deposition, that there was additional information, or that he was displeased with Local 470's representation.
6) Did the failure of Local 470 to contest the "irregular discharge" of plaintiff constitute gross misfeasance, malfeasance or nonfeasance? The union did grieve and represent Johnson in his contest of the alleged irregular discharge. Again, even if the union was negligent, this does not show the requisite arbitrary and capricious action. In addition, both panels found that Johnson voluntarily quit his job. Therefore, there was no reason for the contractual requirement of giving notice to have been invoked.
We find that no factual dispute exists and that the complaint does not state a cause of action against Local 470 for breach of its duty of fair representation. Accordingly, the companion action against AAA for breach of the contract must also be dismissed. Hines, supra at 570.
Johnson filed a charge of discrimination with the EEOC on March 27, 1975. He charged that
"I was discriminated against on the basis of my race, Black. I was fired from my position as a 'Yardman' (in-terminal truck driver) for refusing a request to work out of my classification (on the loading platform). . . . White employees are not asked to work out of classification."
On February 18, 1976, the EEOC determined that there was probable cause to believe that the charge was true. It found that 13 white employees had been given warnings in 1975 by AAA for failure to follow instructions. One white employee was discharged following eight written warnings in a nine-month period. Johnson was the only person who was terminated for that offense without a warning letter.
The EEOC also found that when the white employee who replaced Johnson refused to report for work he was merely warned about insubordination by the same supervisor who had terminated Johnson.
The EEOC concluded that the reason "for the different treatment" of Johnson "was his race."
Conciliation efforts were unsuccessful and the EEOC issued a Notice of Right to Sue letter on July 28, 1976. This action was filed on October 21, 1976, within 90 days.
The issue of discrimination was considered by the JAC and it found that "the Employer did not discriminate against Johnson." Except for the findings of the EEOC, there is no evidence on the record which raises a question of fact concerning discrimination. The plaintiff's own deposition fails to state one instance of discrimination besides the discharge in question. Johnson's vague statement on page 42 of the deposition that:
[Over] the years I observed how certain things took place, who got what, who was overlooked doing this when they should have say, for instance, been fired for the things that they were doing, and due to the fact that I got into this difficulty with Marty Kennelli that they would fire me, and these white boys, nothing ever was done about what they were doing.