Dennis John Lewis, A/K/A Richard Kennedy v. Greyhound Lines-East, 555 F.2d 1053

Dennis John Lewis, A/K/A Richard Kennedy v. Greyhound Lines-East

555 F.2d 1053

D.C. Cir.

1977

Check Treatment

*2 bаrgaining agreement, lective courts must MacKINNON, Before ROBB and WIL- Y, accept this and respect award as Judges. Circuit final KE binding of procedural

Opinion Per Curiam. indicating possibility flaws of a miscar Dissenting justice. Opinion riage filed Circuit An can Judge be set aside MacKINNON. duty if the union breaches its East, # 1 U.S.C. § Lines — F.Supp. (D.C.D.C.1976). denominated, Appellant also fur as with the in connection sentation faith, evidence of bad the Union’s fail ther Motor Anchor Hines proceedings, to file action with the NLRB after ure but, properly District Court Freight,3 (The pressed appel Union arbitration. infra, here, no breach see arbitration, discharge pro whеre lant's proce- the absence Given occurred. *3 through of days proceed two vided counsel agreed arbitral award in an flaws dural District Court ings). very properly The re and be exclusive Employer to and Union that a union does not have to ad sponded appellate of final, the role hardly it is every grievance the NLRB vance to of its findings the arbiter’s go behind to court It possesses pursue discretion to members. the discharge complaint on retry this and grievances it considers to only those the We thus affirm level. this facts at addition, In the meritorious. District be re- finality provision as noted, the of appellant, complain enforcement cannot Court running of the statute of here.4 the limitations on arbitration spects the appeal since the NLRB Union the disclosed breached challenge only wrongful that the Union to the its intention As evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍representation discharge, and not the issue. aрpel the representation, fair duty of that the upon the fact heavily relied lant sum, In the correctly District Court decid- him that he was told the Union President not to set aside the ed arbitration award. at representative representation of to Union the the Union did a Since entitled integrity the the not undermine аrbitra- meeting. disciplinary possible first the the proceedings, tion of the Union Presi However, statement the binding. be enforced as final and should interpretations “an upon was based dent Court, bargaining agree the granting The order of District of the collective manual dismiss, is hereby the motions to detracting, the ment,” judgment in thus Court, allegations of from the District the Affirmed. to appellant must set out faith that

bad MacKINNON, dissenting: Judge, Circuit duty. The of the Union’s the breach show in noted that the events also Court District complains he was unlawfully that 1973, the prior union-compa- in to deci in discharged violation of the case occurred the contract, sec- cognizable a claim under Inc.,5 ny 1975, Weingarten, NLRB v. sion Act. Taft-Hartley of the tion dis at holding of union lack to an unfair labor meetings be ciplinary (a August Friday), at about On A.M., time, quitting ten 7:50 minutes practice. appear does it that he could not S.Ct. 3. 424 U.S. meeting Employer a with the do so because arranged, Lеwis’ absence from could be to reach the merits for voluntary Even were we a and work was indeed reason, appear to us the discharge. does not that arbiter it provide a In basis for lawful could discharge. arbitrary sustaining the The addition, disciplinary was the the arbiter found that essentially attended, to arbiter found that in his failure meeting, the Union President being report to a “incomplete to work after asked attend out be and ineffective” turned disciplinary meeting appellant “attitude,” failed “to appellant’s g., e. his un- due to recognize right Employer to reason- lying. According charges of to the founded ably employees. arbiter, control the activities of its appellant “to heed the advice of failed Award', Opinion Appendix .” at he whose intercession his Union words, legitimate is not attempted requested, when the latter had employee disobey super- prerogative of a correсtly.” intelligently dispute handle order, visory if he that con- even believes Ibid. rights are violated. Lewis should have tractual supervisor’s immediately. gone If 43 L.Ed.2d 171. to the office S.Ct. 5. 420 out, Moreover, improper, point the Board of action he he deemed that should we Weingarten remedy pursued through the estab- considered have Arbitration e., provided appellant grievance procedure. inapplicable, was union Since he refused i. lished Award; Opinion App. meeting report representation. a at or to the work days, during only four-day period, one of which supervisor’s Greyhound summoned to his Lewis was reprеsentative. Brown, Mr. Company Bus for a however, office “busy and was unable to see hearing. He told that disciplinary ... Mr. time, [Lewis] but an the quality wanted to “discuss supervisor arrangement was made for meeting replied He that he would not his work.” place take on the following day, August meeting presence attend such without App. 29. 8th.” representative. Prior to of a union this meeting finally The place took on August had time Lewis been told that was enti- 8th. denied charges in strong represented by representa- tled union language and the conclusion of the meet- hearings. supervisor, at such tives company’s customary discharge however, on his insisted immediate attend- (Form 6) was form delivered by Mr. Brown representative. ance even without Mr. Lewis. The document signed did not inform *4 Mr. Brown. 7th, was dated August the presence to the was not entitled union day the meeting. before App. 30. There- representative. after Lewis contested his discharge by fil- punched out at 8:01 A.M. and de- ing a grievance. job his other parted began for at This grievance was by heard three arbi- company. A.M. with another Later that The trators. arbitration award states that morning while Lewis was at his other work job “abandoned his because of his a phone Brown, he call received from Mr. failure communicate with Mr. Brown Manager the for Regional Greyhound, who August 3 through August 7” ap- told Lewis “unless ... he [reported] parently upheld the discharge. App. office at once my without a union admitted, opinion however, . . The that the sentative would not be al- [he] the basis for action was incomplete to return to work.” finding lowed because See arbitrator, App. 28. Lewis did make efforts support posi- The his finds words, these “at that once” or tion the extent that he had attempted “immediate- ly” phone as used Brown in his with Mr. call were communicate Butler. necessarily intended to mean that Lewis opinion The arbitration and award recites daytime had to leave his employment and that the arbitrators met on June return to the terminal ap- because it was 11,1975 February thereof, but the copy parently coupled with a statement that that is contained in the appendix (App. permitted Lewis would not be to work until (cid:127) 27-32), signed only is by one he with had first met Brown and that (App. 32). “Knowlton” The lines for the necessary appoint- would to make an signatures of the other two arbitrators ment ahead time to do so. The arbitra- state “Concurring/Dissenting” 32). (App. tor that it could not be concluded To what extent the other arbitrators con- “it that was then intentiоn of the Em- curred or dissented nowhere indicated. ployer to than position do more reassert The arbitrator’s and award also con- meeting place that a must take at a mutu- following tains disclaimer: ally time in with ac- convenient accordance following opinion The is the sole respоnsi- cepted practice.” App. 29. bility the undersigned, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Knowlton. (a August weekend of 4th Over the Sat- 27) (App. 6th, August 5th also on urday) and upshot was that Lewis was fired attempted to with Mr. communicate for allegedly abandoning job his Butler, after he president, his union but was unable had been ordered his not to August to find him his office. On 6th work he return tо until had (Monday) finally reached Mr. first met he Butler on with 7th, App. Mr. telephone Following and on Brown. Tuesday, he such or- met with Mr. Butler in ders from Brown he morning report did not for work Greyhound terminal and at time an because he was attempting to find the un- Brown, attempt was made meet with Mr. ion officer him in his hearing delay Brown and some of the coalesce before abandonment will be found unavailability. Brown’s The in- caused to exist. 1 Words and Phrases 101-106 (the August of the weekend in tervention (1964). All the evidence in this record be- 5th) also made it difficult to 4th reach lies that Lewis had requisite intention representative. his Lewis was even- his to abandon I would thus find on tually advised that under some recent modi- the admitted facts of this record that Lewis agreement the union’s fication “abandon” job did not during the four he was not Greyhound, entitled to a union he days attempting represent- to find a the first such meeting. appear ative of union to with him at the this, he When learned Lewis immediately сompany-requested disciplinary hearing in did, appeared however, before Brown. He help his effort him job hold his the —at representative. have a union complying same time with the supervisor’s At to not hearing report order for discharged nunc work until the disci- abandoning tunc for pro during plinary had been hеld. 7; 4-day period, August 3 to Also, it does appear from the docu- company report had told him not to appendix ment (App. 27-32) that the reported discipli- work unless had for the award had been sufficiently hearing. In view of the fact that the nary proved. collective bargaining agree- had employеe superior’s followed his orders provides cases, ment “in discharge the third work, reporting impossi- I find it in not *5 shall be instructed to issue his support finding that he “aban- ble to decision as promptly as possible . . .” job seeking doned” his while he was his App. 25. If the arbitration award filed representative help preserve him signеd “Knowlton” was by him as the third an inten- job. Abandonment involves his that still does not explain the compliance act and his with Brown’s tional signature of the other two any with completely order is inconsistent arbitrators nor the to which they extent intentionally in absent- claim that he acted or “concurred” “dissented” in opiniоn work. He was industri- ing himself from award. working jobs hardly at two the sort ously — summarize, To that Lewis was wilfully that would refuse to person of fired for “abandoning” when he was intentionally “abandon” one work or reality complying in with supervisor’s question of always involves Abandonment order not to return to work until he had intention, Company Insurancе Columbian reported for his disciplinary hearing. This 139, 143, (4 Pet.) 7 L.Ed. 809 Ashby, 29 U.S. hearing delayed while Lewis was seek- Equi- stated in (1830) Judge and as Johnsen his union to appear with Society v. Mercantile- table Life Assurance him, only learn when he found him that 776, Co., Trust 155 F.2d Bank & Commerce not he was “entitled” to such representation 1946), ‘is a (8th “abandonment 779-780 Cir. beсause of some modification of the agree- abandon, up made of an intention fact ment between the union and the company by which the intention external act and the ” had not which been communicated to cases.) (Citing into effect.’ is carried dispute either before the arose or at conjoin oper- any elements must These two time before 8th when he appear. did is no abandonment. or there together ate company through Butler ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Jones, (8th was at 120 F.2d 830 fault Helvering v. informing in not Lewis that he 1941). unexplained would “Acts not Cir. representation entitled to union an abandonment when sufficient to estаblish be first stated he insisted by showing that there thereon. be answered And more may so, the union was also give up substantially and relin- was an intention never fault delay v. Eis- for the in right appearing claimed.” Saxlehner quish the for the Co., 19, 31, hearing. Mendelson 179 U.S. breached its duty ner & of fair repre- 7, 12, (1900). The cases 45 L.Ed. 60 sentation to Lewis not informing S.Ct. must that hold both elements other myriаd are and its members of the nied, them un- 377 U.S. S.Ct. denied change which substantive (1964), which, under NLRB company disci- L.Ed.2d 1052 at initial representation ion an obli- would suffice to oust defer- any A union owes practice, conferences. plinary members, fairly if it is to ence to the arbitration award. See also to its gation Co., them, Manufacturing them of material 112 NLRB Spielburg to inform Hence, (1955). bargaining agree- the union could the collective changes in sure of a de novo particularly have been employers with ments rights complaint taken Lewis’ to the Board. directly affect had it changes that those grievance disciplinary and in employees object to so obvious a short- Failure part on the delinquency This proceedings. raise an coming could inference of a breach pro- tainted the arbitration the union duty of fair representation. of the union’s had an obvious the union because ceeding for the The inducemеnt union in this case stressing not its own of interest conflict object to the arbitration opinion not major of Lewis cause delinquency well have been that (going beyond hearing. attending the immediately him) gratui- issue before the arbitrator Inc., Freight, Motor v. Anchor Hines tously pointed out that failure of “[t]he [the 570-571, 96 S.Ct. procedure grievance] operate effectively advocate, un- vigorous more A way any represen- in no due to lack of being principal cause tainted (J.A. 31). the Union . tation .”. discharge, employee’s for the the reason But, obviously, it was. before the arbitrators. prevailed might have we should my view reverse the District told Lewis it did the union fact that decision and remand the case Court’s the fair raise plan to the validity of the arbitration determine before the Labor proceedings issue and award and to determine the indica- 1054), is further op. p. (Maj. Board views of the two arbitrators. This its breach tion of (at dеcide court cannot least should not expected to hardly could sentation —it decide) on such a sketchy cases record. If *6 failure to its own raise was, presently arbitration as is setting for aside the a reason as record, only on this indicated upsetting award and the validi- arbitrators’ when the onе arbitrator contract called large- as it was discharge ty of the —caused three, ac- deference should have been no neglect. its own ly by An arbitra- byit the District Court. corded legitimate long possesses only wide “award is a union tor’s is true that essence from the collective bar- bring complaint a member’s its draws discretion the arbitrator’s Board, agreement. of that When gaining but the exercise obliga- infidelity to this beyond review where the words manifest discretion tion, have choice but to refuse its member are in courts no of a union and interests of the award.” United Steel- union was content to rest enforcеment conflict. Enterprise Wheel & of America v. award that workers with an arbitrator’s 80 S.Ct. signed by Corp., It was 363 U.S. may facially invalid. Car clearly stated that only one of that one responsibility” was “the sole order that be held also I would (J.A. 27). only This court can extent to which the union to determine ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it, on that on the record bеfore rule representation by its breached record, explanation the facial there is no inform Lewis advance of his failing to opinion. in the flaw problem that he was not enti- disciplinary a first meet- least, would, at the to union type of this tled

An error company, and also into the ing with the procеdural irregulari- a “serious constitute company for Lewis’ Co., responsibility 138 NLRB Harvester ty,” International nom., ensuing absence from work which resulted Ramsey (1962), enforced sub cert, Lewis, informing Cir.), de- NLRB, (7th 327 F.2d representa- stated he desired when he

tion, he was not entitled to such the matter. stage at that

sentation I respectfully reasons dis- the above

For

sent. FROZEN

AMERICAN FOOD

INSTITUTE, Appellant, CALIFANO, Jr., Secretary

Joseph A.

Health, Welfare, Education and et al. 76-1620.

No. Appeals, Court of

United States

District of Columbia Circuit. 2,May

Argued May

Decided *7 Olsson,

Philip C. Washington, C.,D. Rill, whom James F. Washington, C.,D. brief, was on the for appellant. Merrill, Counsel, Richard A. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Chief Food Drug Administration, Rockville, Md., Silbert, with whom Earl J. Atty., U. S. Stephen McNamara, H. Associate Chief