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KING v. FOX GROCERY CO.

February 11, 1988

Donald J. King, Plaintiff
v.
Fox Grocery Company, Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 872, and International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, Defendants



The opinion of the court was delivered by: WEBER

 Plaintiff was discharged from his job as a warehouseman for failing to meet company productivity standards. He filed this hybrid § 301/fair representation suit charging: a) that his employer discharged him in violation of the collective bargaining agreement because the productivity standards were impossible to meet without violating certain safety regulations, and b) his union breached its duty of fair representation by failing to pursue his grievances to arbitration, or by failing to adequately present them. The parties have completed discovery and we have held two Pretrial Conferences in an effort to define and simplify the issues for trial.

 I. JURY TRIAL

 Defendants have filed a motion to strike plaintiff's jury trial demand, asserting that there is no jury trial right in a Vaca v. Sipes style action. The parties have fully briefed this difficult question.

 Analysis begins with Ross v. Bernhard, 396 U.S. 531, 24 L. Ed. 2d 729, 90 S. Ct. 733 (1970). The Court required a tri-partite analysis of each case to determine if the right to trial by jury attached.

 
1) What was the pre-merger custom as to such claims?
 
2) Is the remedy sought equitable or legal in nature?
 
3) Does the case exceed the practical abilities and limitations of jurors?

 Application of this analytical framework to hybrid § 301/fair representation suits has resulted in a sharp split of authority. Some courts have held that a plaintiff in such an action has a right to jury trial of all issues: Roscello v. Southwest Airlines Co., 726 F.2d 217 (5th Cir. 1984); Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1244 (8th Cir. 1980); Cox v. C. H. Masland & Sons, Inc. 607 F.2d 138 (5th Cir. 1979); Minnis v. International Union, UAW, 531 F.2d 850 (8th Cir. 1975); Palmer v. Metro-North Commuter Railroad Co., 661 F. Supp. 1178 (S.D. N.Y. 1987); Massey v. Whittaker Corp., 661 F. Supp. 1151 (N.D. Ohio 1987); Leach v. Pan American World Airways, Inc., 651 F. Supp. 713 (S.D. Fla. 1986); Emerick v. McConway & Torley Corp., 650 F. Supp. 545 (E.D. Pa. 1986); Grider v. Monin, 637 F. Supp. 324 (N.D.Tenn. 1986); Allen v. Allied Plant Maintenance Co., 636 F. Supp. 1090, 1099 (M.D.Tenn. 1986); Cook v. National Maritime Union of America, 617 F. Supp. 1052 (S.D. N.Y. 1985); Legutko v. Local 816, International Brotherhood of Teamsters, 606 F. Supp. 352 (E.D. N.Y. 1985); Wood v. International Brotherhood of Teamsters, Local 406, 565 F. Supp. 1011 (W.D. Mich. 1983); Kinzel v. Allied Supermarkets, Inc. 88 F.R.D. 360 (E.D. Mich. 1980); Steele v. Brewery & Soft Drink Workers, Local 1162, 432 F. Supp. 369 (N.D. Ind. 1977); Rowan v. Howard Sober, Inc., 384 F. Supp. 1121 (E.D. Mich. 1974); Lucas v. Philco-Ford Corp., 380 F. Supp. 139 (E.D. Pa. 1974). See also, Quinn v. DiGiulian, 238 U.S. App. D.C. 247, 739 F.2d 637 (D.C. Cir.1984) (LMRA).

 On the other hand, some courts have found no right to jury trial in such actions: Chrysler Workers Association v. Chrysler Corp., 663 F. Supp. 1134 (N.D. Ohio 1986); Schrader v. Sheet Metal Workers, Local 20, 656 F. Supp. 1487 (N.D. Ind. 1987); Spicher v. Wilson Foods Corp., 122 L.R.R.M. 3168 (C.D. Ill. 1985); McIntyre v. Steelworkers Local 7555, 120 L.R.R.M. 2911 (M.D. Fla. 1985); Coleman v. Kroger Co., 399 F. Supp. 724 (W.D. Va. 1975) (but court used advisory jury); Nedd v. Thomas, 316 F. Supp. 74 (M.D. Pa. 1970); Brady v. Trans World Airlines, Inc., 196 F. Supp. 504 (D.Del. 1961). Other courts permit jury trial on the claims against the employer, but reserve the duty of fair representation claim to the court: Atwood v. Pacific Maritime Association, 432 F. Supp. 491 (D.Ore. 1977); Harrison v. Chrysler Corp. 60 F.R.D. 9 (S.D. Ind. 1973).

 With no clear cut choice, we examine the Ross criteria. Hybrid § 301/fair representation claims did not exist at common law, so we look to analogous pre-merger causes of action. Many of the earlier decisions on this topic were grounded in the analogy between the plaintiff's claims against union and employer with common law tort and contract actions. These analogies were rejected by the Supreme Court in United Parcel Service v. Mitchell, 451 U.S. 56, 67 L. Ed. 2d 732, 101 S. Ct. 1559 (1981) and DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). Instead, the Court stated that such claims are more properly likened to actions for breach of fiduciary duties, or to vacate arbitration awards, both of which are traditionally suits in equity. Plaintiff's claim may also be likened to an unfair labor practice charge which carries with it no right to jury trial. See DelCostello, 462 U.S. at 170.

 Recent decisions upholding a right to jury trial in these cases have distinguished the analogy to equity claims in Mitchell and DelCostello as occurring in a statute of limitations context. E.g., Quinn v. DiGiulian, 238 U.S. App. D.C. 247, 739 F.2d 637 (D.C.Cir. 1984); Massey v. Whittaker Corp., 661 F. Supp. 1151 (N.D. Ohio 1987); Emerick v. McConway & Torley Corp., 650 F. Supp. 545 (E.D. Pa. 1986). While Mitchell and DelCostello may not be strictly controlling here since they did not of course employ the Ross criteria, we believe they do carry considerable weight when trying to characterize the present action. To reject the characterizations of Mitchell and DelCostello entirely when considering jury trial rights makes for a chameleon of an action -- legal for some purposes, equitable for others, with only a change of background needed.

 Turning to the nature of the relief sought by plaintiff, we note that plaintiff seeks reinstatement, back pay and fringe benefits, and such other relief as the Court deems appropriate. Reinstatement is of course an equitable remedy, but back pay is not so easily classified. Defendants offer the bromide that back pay is an equitable remedy. However, the stark reality is that back pay is simply the measure of money damages suffered by plaintiff as a result of his allegedly wrongful discharge, i.e., a typical legal remedy. Nor can we conclude that 4 years of lost wages is "incidental" to the equitable relief sought. However, we think that the relief sought is most appropriately characterized as the vacation of the Order of the Joint Area Counsel, and abrogation of the settlement accords which the union signed over plaintiff's objection. See Mitchell and DelCostello. All relief flows from these equitable remedies and thus we conclude that the relief sought by plaintiff is equitable in nature.

 Finally, we consider the abilities and limitations of jurors. Though we have great faith in the capacity of jurors to separate wheat from chaff in the presentation of evidence, the court has thus far been unsuccessful in having counsel simplify the issues and cogently present the critical aspects of the case. In the present ...


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