APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-3307)
Before Rosenn, Garth and Higginbotham, Circuit Judges.
The narrow issue that we are asked to decide on this appeal is whether summary judgment was properly granted by the district court in favor of Hall's Motor Transit Company ("Hall") and Teamsters Local Union No. 429 ("Union"). Hall and the Union were sued by Edgar H. Ely, Jr., a former employee of Hall's and a member of the Union, pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1977), on the ground that Hall had breached the applicable collective bargaining agreement and that the Union had breached the duty of fair representation that it owed to Ely.
Upon review of the record, we are of the opinion that a narrow range of material factual issues remains in dispute among the parties. We therefore conclude that summary judgment should not have been granted.
Ely was employed by Hall's from March, 1965 to January, 1975 at its terminal in Kutztown, Pennsylvania. During this time, he worked at several different positions. From March 12, 1965 to July 12, 1971 Ely worked as a dockman and a hostler.*fn1 Since July 12, 1971 he has worked primarily as a city run driver*fn2 or a peddle run driver.*fn3 During the time that Ely worked as a driver, he was assigned to the "extra board" at Hall's terminal. "Extra board" employees were not assigned permanently to a specific position and were not guaranteed any specific number of hours of employment per week. At the time of Ely's employment, they did however, have the privilege of selecting in advance the type of work that they desired to do.*fn4 They could choose among road work*fn5, city run work, peddle run work, or dock work, and were entitled to decline work offered to them in categories they had not selected. While working on the "extra board", Ely signed up only for dock work, city run work, and peddle run work; he consistently declined road work that was offered to him.
At all relevant times, Hall and the Union were parties to the National Master Freight Agreement and Central Pennsylvania Over-the-Road and Local Cartage Supplemental Agreement (NMFA). Section 2(a) of Article 42 of the NMFA specifies the conditions under which seniority will be broken:
Seniority shall be broken only by discharge, voluntary quit, layoff for a period of three (3) years from last date of employment, failure to respond to notice of recall, or unauthorized leave of absence.
Article 43 sets forth the grievance and arbitration procedure "for the purpose of settling grievances and disputes." A Joint Local City Grievance Committee ("City Committee"), composed of two representatives of the Union and two representatives of the employer, was established for the purpose of hearing and deciding grievances. If a decision is not reached or a settlement agreed upon, the grievance is referred to the Central Pennsylvania Joint Area Grievance Committee ("Area Committee"). Any decision reached by the Area Committee is final and binding on the parties. If no decision is reached, the matter proceeds to arbitration.
Grievances initiated by employees under the NMFA must be submitted in writing to the Union representative or steward within three days from the occurrence of the matter.*fn6 Union initiated grievances must be submitted in writing to the employer within seven days from the date of the occurrence of the matter.
On January 11, 1975, Ely was laid off by Hall because of lack of work. Ely received a telephone call from James Collins, manager of Hall's Kutztown terminal, on March 26, 1976. This call was described by Ely as follows:
He (Collins) had called me up and asked if I was interested in a road bid, in which I replied, "No, I don't think so ...