APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-0057)
Before Hunter and Weis, Circuit Judges and Cahn,*fn* District Judge.
A union must provide its members with fair representation in resolving differences with employers. Alleging a violation of that duty, the plaintiff, unsuccessful in grievance proceedings, convinced a jury both of the deficiency of his union representation and the merits of his dispute with his employer. After review of the record, we conclude that the evidence failed to establish that the union breached its duty of fair representation and direct entry of judgment for the defendants.
The plaintiff filed suit in the district court against his former employer, Jones Motor Freight, asserting a termination of his employment in violation of the collective bargaining agreement, and against his union, Teamsters Local No. 429, asserting a breach of the duty of fair representation. A jury found that the union had not fulfilled its duty of fair representation, and, in a separate trial, also returned a verdict against the employer. The parties then stipulated to damages. Motions for judgment n. o. v. and new trial were denied.
Viewing the evidence most favorably to the plaintiff, the relevant facts are as follows. For several years before 1975, Findley had been employed as an over-the-road driver by Jones Motor Freight. On March 20 of that year, at 3:42 a. m., the telephone in the Findley residence rang, and the plaintiff's wife answered. Unable to understand what was being said, she handed the phone to her husband, who had also been asleep. Because of static, plaintiff was unable to identify the caller and hung up.
Since Findley was due to receive a work assignment from Jones Motor Freight, his wife thought the call might have come from the company and suggested that he call back. Findley was unsuccessful in dialing Jones directly, but with the assistance of a long distance operator, he was finally able to reach Warren Becker, a line haul coordinator at the terminal. Becker said Findley's refusal to accept the work call some minutes earlier was being deemed a voluntary quit. Findley detailed the difficulties with the telephone connection, but Becker refused to accept the explanation. Immediately after this conversation, Mrs. Findley reported the malfunction to the telephone company.
Between 7 and 8 a. m. that same morning, Findley received another telephone call and was barely able to hear the words "Western Union." He walked to a pay station in a nearby shopping center where he called Western Union and received the following message: "Your refusal to accept a work assignment in accordance with company work rules at 0347 hours this date is a "voluntary quit' on your part and your status as an employee of this company is terminated (signed) W. L. Williard, Line Haul Supervisor."
Findley telephoned union business agent Gus Varish, who suggested filing a grievance with the union steward, Jack McCrary. When Findley returned to his home he met Craig Hunt, a repairman who had been dispatched by the telephone company to investigate the problem reported earlier that morning. Hunt found that the wire was partially corroded at the point where it entered the house. He replaced the defective section and gave the damaged wire to Findley. Hunt then went to a notary public's office, where he signed an affidavit stating that Findley's telephone was partially out of service "so that the complete call was not received." He also gave a copy of the Bell Company work order to Findley.
Following this, plaintiff went to the home of union steward McCrary and displayed the wire, affidavit, and work order. After hearing a description of the events, McCrary called the Jones supervisor and, terming the discharge illegal, demanded that Findley be put back to work. When the supervisor refused, McCrary assisted Findley in writing his version of the circumstances on a grievance form.
A few days later, Findley was notified by John Ignatosky, another union business agent, that a company level hearing was scheduled for the following Monday. No further investigation or interview with Findley by union representatives preceded that meeting, but Ignatosky and McCrary did accompany Findley to the hearing. Although plaintiff presented his documentary and demonstrative evidence, the company representative was not persuaded by it or Ignatosky's arguments for reinstatement. After denial of the complaint, the business agent announced his intention to begin the formal grievance procedure.
A hearing before the Joint Local City Grievance Committee was promptly arranged. Plaintiff was not told to bring his wife or any other witnesses. The designated panel consisted of two union members, one of whom was Varish, the business agent, and two industry representatives. The identity of the panel members was not disclosed to Findley, nor were there any consultations with Ignatosky or McCrary in advance of the hearing, although both were present.
During the hearing, Findley presented the Hunt affidavit, the piece of wire, and the work order. In addition, he spoke on his own behalf, and produced a letter from the Bell Company stating that a collect call had been placed to his residence at 3:42 a. m. lasting four minutes, and at 3:51 a. m. a station-to-station operator handled call lasting six minutes was placed to the Jones Company number. Ignatosky argued the facts of the case, contended that Findley had been discharged illegally, and urged that he be returned to work.
For its part, the company submitted an affidavit from an employee named Herr who said he heard Findley threaten Becker during the return call: "I'm going to get you for this." The employer argued that plaintiff had quit ...