Eugene Joseph WHITE, Plaintiff-Appellant, Cross-Appellee, v. ANCHOR MOTOR FREIGHT, INC. and Local 580, International Brotherhood of Teamsters, Defendants-Appellees, Cross-Appellants.
Nos. 88-1725, 88-1960
United States Court of Appeals, Sixth Circuit.
Decided April 4, 1990.
Rehearing and Rehearing En Banc Denied May 31, 1990.
899 F.2d 555
United States v. Wright, 610 F.2d 930 (D.C.Cir.1979), relied upon by the majority, arose under the District of Columbia Code. The District of Columbia search warrant in that case is distinguishable from the federal warrant in that it required the officers to bring the property before the court. Id. at 932. Moreover, the issue decided in Wright was whether the court had jurisdiction to hear a motion to return the property after the criminal case was closed. The property had been transferred from the property clerk of the Metropolitan Police District to the General Revenue fund of the District of Columbia. The court held that the criminal courts which had authorized the seizure of the property retained jurisdiction to order its return even post-conviction or after dismissal of the charges. The District of Columbia Code provided that the court could order the return of property after an acquittal but was silent with respect to the court‘s jurisdiction after conviction or dismissal. The government argued that since the District of Columbia was not a party to the criminal action (the United States was the named party), the court lacked jurisdiction to enter an order in the criminal proceeding directing the District of Columbia to return the property. It is in this connection that the court made the statement relied upon by the majority. The court noted that the search warrant required the executing officers to “bring the property before me [the issuing magistrate].” Id. at 932 n. 1. In view of that requirement, the court decided that if the District of Columbia or the property clerk thereafter came into possession of the property they held it as agents of the United States. The magistrate once having possession and control of the property which was brought before him could be said to have been required to maintain that possession and control, and the property clerk was seen as the court‘s agent to maintain that control. In the case of a federal search warrant the property is not brought before the court but remains in the possession and control of the executive branch. The clerk of the court has no say in where or how the property should be stored. The executive which seized the property retains possession and control until it either voluntarily returns the property to the owner or is ordered after hearing and adjudication to return it, to turn it or its proceeds over to the treasury, or in the case of contraband perhaps, destroy it.
The majority‘s decision places a heavy burden on the District Court clerk. Search warrant returns may be filed under miscellaneous numbers which reflect only addresses. The inventory which is the only document filed with the clerk may or may not disclose the ownership of the property. The holding that the clerk has possession and control of the seized property will require the clerk to catalogue seized property and preserve it, duplicating the efforts of the Marshals Service and engendering possible conflicts as to the manner in which the property should be safeguarded.
Were I to agree with the majority that the District Court had possession and control of the property, I would remand the action for determination of whether the property was in custodia legis and therefore not subject to garnishment.
Barbara Harvey (argued), Detroit, Mich., for Eugene Joseph White.
David R. Knowles, Cleveland, Ohio, Timothy Sawyer Knowlton (argued), Honigman, Miller, Schwartz & Cohn, Lansing, Mich., for Anchor Motor Freight, Inc.
Gerry M. Miller (argued), Previant, Goldberg, Velman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for Teamsters, Local 580.
Before KRUPANSKY and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
KRUPANSKY, Circuit Judge.
White had been employed as a driver for Anchor for approximately nine years transporting motor vehicles by truck when he was discharged on September 10, 1985 after an accident at Port Newark, New Jersey on August 21, 1985. The circumstances of the accident are not in dispute. Appellant was loading new vehicles onto his tractor trailer for transport at Port Newark when he was instructed to move his rig to another location and wait for clearance to proceed loading. Appellant failed to retract a ramp that he had extended for on-loading his cargo before moving his unit. Hidden from appellant‘s view as he moved his rig, the extended ramp collided with a new BMW automobile that was on the trailer of another carrier.
Appellant immediately reported the accident to his superiors at Anchor‘s Lansing, Michigan terminal. Upon his return to Lansing on August 24, 1985, appellant was suspended pending full investigation of the circumstances of the accident. On September 10, following investigation and a preliminary assessment that the accident had resulted in approximately $5,000 of damage to the BMW, appellant was discharged from his position with Anchor.
White filed a grievance challenging his discharge with his Local 580 steward, Don Beecham. The grievance resulted in the convening of a “local hearing” on September 27, at which appellant was represented by Local 580 business agent Jim Cooper (Cooper). At the hearing, Cooper requested that appellant be reinstated to his former position without backpay. Management denied this request, and classified appellant‘s accident as “major.” Under article 40, section 1(a) of the National Master Automobile Transporters Agreement (NMATA)—the collective bargaining agreement in effect between Anchor and Local 580—Anchor was permitted to discharge a driver for causing a single “major chargeable accident.”
Appellant appealed the decision of the local hearing board to a regional panel comprised equally of union members and members of management (the Michigan Panel).2 On October 28, 1985, after the conclusion of a hearing, the Michigan Panel upheld White‘s discharge. Thereafter he charged that Cooper‘s ineffective and perfunctory representation induced the Michigan Panel to uphold his discharge.
On April 7, 1986, White commenced the instant “hybrid 301” action in district court, alleging that his discharge was in violation of the collective bargaining agreement and that Local 580 had breached its duty of fair representation by failing to diligently represent him before the Michigan Panel. Specifically, he alleged that his
On June 14, 1988, after appellant had presented his case over the course of seven days, the district court granted Anchor‘s and Local 580‘s motion for a directed verdict. The court concluded that appellant had not presented any evidence in support of a finding that the incident at Port Newark was not in fact a “major” accident and that, therefore, his discharge had not constituted a breach of the NMATA. Appellant‘s breach of collective bargaining agreement charge against Anchor having failed, the district court directed a verdict against appellant on his breach of duty of fair representation claim against Local 580. Appellant timely perfected this appeal of the district court‘s order.
In dismissing White‘s cause of action against Anchor for breach of the NMATA, the district court properly concluded that no evidence had been adduced in support of appellant‘s contention that his accident was not properly classified as “major.” The NMATA unequivocally permitted the discharge of a union driver for committing a single major chargeable accident. See Whitten v. Anchor Motor Freight, 521 F.2d 1335, 1339 (6th Cir.1975). The court concluded that Anchor had not breached the NMATA by discharging appellant for his “major” accident at Port Newark. Accordingly, this court affirms the district court‘s order granting Anchor and Local 580 a directed verdict on this issue.
Unable to prove that his accident was not classifiable as a “major” accident, appellant has asserted that the Michigan Panel has traditionally ordered the reinstatement of drivers who had committed infractions of similar magnitude, and that he, too, would have been reinstated had Local 580 properly presented his case to the Michigan Panel. In this vein, appellant has argued that both Local 580 and Anchor discriminated against him for his support of a dissident union organization known as Teamsters for a Democratic Union (TDU), and, more specifically, for having filed complaints against both Local 580 and Anchor with the NLRB earlier in 1985.4 Appellant alleged further that anti-TDU animus caused Anchor to discharge him in the first instance, and was responsible for Cooper‘s ineffective representation before the Michigan Panel.
In his pleadings before the district court, appellant did not argue that his discharge was discriminatory in violation of NMATA article 14 of the collective bargaining agreement. The argument was referenced neither in appellant‘s complaint nor in his subsequent pleadings. Both Anchor and Local 580 object to the appellant‘s efforts to join the issue of unlawful and discriminatory discharge in violation of NMATA article 14 for the first time on this appeal.
White has urged that, although he concededly had failed to reference article 14 in his complaint, it should nevertheless be liberally construed to incorporate by inference a cause of action for discriminatory discharge. In support of this request, appellant alludes to the well established rule that technical defects in factual pleading should not exert a substantive impact on the course of a lawsuit. Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 102-03, 2 L.Ed.2d 80 (1957).
In advancing this argument, however, appellant has ignored the import of his complaint, which was framed exclusively in terms of NMATA article 40. Appellant‘s case below, as evidenced by the issues joined in the complaint, by subsequent pleadings and by the testimony elicited at trial, was anchored exclusively in an argument that, pursuant to article 40, his accident was not of the magnitude that would have resulted ordinarily in a driver‘s discharge. As such, White‘s pleadings in the instant case stated a “short and plain” claim for relief arising exclusively from an alleged misapplication of article 40, which addresses the discharge of drivers who have committed major accidents. Simply stated, assigning the most liberal construction to appellant‘s complaint, no claim beyond the charge that NMATA article 40 had been violated is reasonably discernible.
This court will not decide issues or claims not litigated before the district court. Boddie v. American Broadcasting Cos., Inc., 881 F.2d 267, 268 n. 1 (6th Cir.1989); Yeiter v. Sec. Health and Human Svcs., 818 F.2d 8, 11 (6th Cir.), cert. denied, 484 U.S. 854 (1987). Appellant‘s request that his complaint be interpreted so as to infer a discrimination claim under article 14 of the NMATA stretches the Conley v. Gibson rule of liberality to an unwarranted extreme and is offensive to the requirement that on appeal “we review the case presented to the district court rather than a better case fashioned after the district court‘s order.” Adams v. James, 784 F.2d 1077, 1080 (11th Cir.1986). Appellant cannot attempt at the appellate level to materially alter his cause of action by advancing for the first time a charge that his discharge was in violation of the anti-discrimination clause of article 14 of the NMATA.
Appellant has also charged that the trial court erred in directing a verdict against appellant on his claim that Local 580 had breached its duty of fair representation. In support of this argument, appellant has cited to precedent of the Sixth and other circuits wherein jurisdiction over a breach of duty of fair representation claim was upheld under
Appellant‘s argument in this respect is advanced in the face of the established rule that the two constituent claims in every hybrid 301 action—breach of collective bargaining agreement and breach of a union‘s duty of fair representation5—are interdependent; if the first claim anchored in the employer‘s alleged breach of the collective bargaining agreement fails, then the breach of duty of fair representation claim against the union must necessarily fail with it. As this court held in Bagsby v. Lewis Bros. Inc. of Tennessee, 820 F.2d 799 (6th Cir.1987):
In this hybrid suit under § 301 of the Labor Management Relations Act,
29 U.S.C. § 185 , to recover against either the Company or the Union, [plaintiff] must show that the Company breached the Agreement and that the Union breached its duty of fair representation. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47
L.Ed.2d 231 (1976). Unless [plaintiff] demonstrates both violations, he cannot succeed against either party.
Id. at 801 (emphasis in original); accord Adkins v. Intern. Union of Elec., Radio & Machin., 769 F.2d 330, 336 (6th Cir.1985).
Thus, the validity of any hybrid 301 claim is anchored as equally in a finding that the union has breached its duty of fair representation as it is in a finding that the collective bargaining agreement has been breached and that an arbitrator or its equivalent erroneously failed to rule in favor of the grievant employee. Supreme Court and Sixth Circuit precedent teaches that a federal court‘s jurisdiction to review an arbitrator‘s decision is predicated on an allegation that the arbitrator reached an erroneous decision.6 As the Supreme Court has noted, in a hybrid 301 action, “the focus is ... on whether, contrary to the arbitrator‘s decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the arbitral proceedings.” Hines v. Anchor Motor Freight, 424 U.S. 554, 568, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976) (emphasis added). “A court may not review the merits of an arbitration decision, even when the basis for the decision is ambiguous, as long as the award draws its essence from the bargaining agreement.” Wood v. Intern. Broth. of Teamsters, 807 F.2d 493, 500 (6th Cir.1986). In the context of a hybrid 301 action, absent a finding that an erroneous arbitral decision has been reached, the inquiry into the union‘s failure to comply with its duty of fair representation becomes immaterial, and is not justiciable.
Thus, the ultimate issue with respect to the claim against the union in any hybrid 301 case is whether the alleged breach of the duty of fair representation “contributed to the arbitrator‘s making an erroneous decision.” Id. (emphasis added); accord Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1355 (6th Cir.1989). In the instant appeal, appellant‘s accident was properly classified as major; the Michigan Panel, therefore, did not reach an erroneous decision in voting to uphold appellant‘s discharge under article 40 of the NMATA. Absent a finding that his discharge was in violation of the NMATA, appellant cannot be heard to complain that Local 580 breached its duty of fair representation.7
Appellant places undue reliance on the Supreme Court‘s recent affirmation of the principal that “[f]ederal courts have jurisdiction to hear fair representation suits whether or not they are accompanied by claims against employers.” Breininger v. Sheet Metal Workers International, 493 U.S. 67, 110 S.Ct. 424, 434, 107 L.Ed.2d 388 (1989). In none of the cases in which this and other courts have asserted jurisdiction under
In hybrid 301 claims, by contrast, the interrelationship between a union member, his union, and his employer is implicated.8 This court concludes that in the instant case appellant‘s complaint, although alleging jurisdiction under both
For the foregoing reasons, the decision of the district court directing a verdict in favor of appellees Anchor and Local 580 is affirmed.
WELLFORD, Circuit Judge, concurring in part and dissenting in part:
We affirmed the district court‘s grant of a directed verdict to the defendant Teamster Local Union No. 580 (the union) and to the employer, Anchor Motor Freight (Anchor), on November 14, 1989, in a decision reported at 889 F.2d 718 (6th Cir.1989). I believe that we decided the case at that time properly in accord with precedent in this circuit and not contrary to our understanding of Supreme Court decisions on “hybrid” actions brought under
Breininger held that “if the employee fails to affirmatively allege that his employer breached the collective bargaining agreement ..., he cannot prevail.” 849 F.2d at 999 (emphasis in original), citing Bagsby v. Lewis Brothers, Inc. of Tennessee, 820 F.2d 799, 801 (6th Cir.1987). The Supreme Court, however, on December 5, 1989, in Breininger v. Sheet Metal Workers, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989) reversed our Breininger holding and held that the above quote “is a misstatement of existing law.” 110 S.Ct. at 432, citing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
In Breininger, the Supreme Court went on to hold
Federal courts have jurisdiction to hear fair representation suits whether or not they are accompanied by claims against employers ... [I]ndependent federal jurisdiction exists over fair representation claims....
110 S.Ct. at 434. Our decisions in Adkins and Bagsby were overturned by the Supreme Court in this regard.
The complaint in this case asserts a breach of the collective bargaining agreement by reason of discharge without just cause,2 and the union‘s discriminatory and arbitrary failure to represent White properly, particularly in allegedly failing to present to the grievance hearing panel “highly relevant evidence” (work record and handling of comparable charges against other employees).
We have held in this case that because White failed to charge Anchor with discriminatory discharge in violation of Article 14 of the CBA, he cannot litigate this claim before this court on appeal. Today‘s opinion goes on to conclude that if the claim
against the employer failed, because White did not present evidence raising a genuine issue on the “major” accident factual question, then the claim against the union on the “interdependent” failure to represent bargaining claim must also fail. I believe that this reasoning is no longer valid in light of the Supreme Court‘s decision in Breininger, and that federal jurisdiction continues to exist on the claim against the union. See also Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).
White did, in fact, assert discriminatory conduct on the part of both employer and his union, although the assertion against the employer was perfunctory and conclusory. He did not make it clear that he claimed that Anchor was, in effect, retaliating against him because he supported TDU, and did not pursue proof to that effect at trial. I concur, then, in holding that the directed verdict in favor of Anchor is not error, although I find the issue to be close. I concur with the majority, then, in affirming the judgment for Anchor.
I must depart from the majority decision, however, in respect to the judgment against White in his claim against the union. I construe Breininger to mean what it says in holding that “whatever the employer‘s liability, the employee would still retain a legal claim against the union,” and that “independent jurisdiction exists over fair representation claims.” Id. 110 S.Ct. at 434. If independent jurisdiction exists in the first instance over a separate claim for failure to represent fairly, then it seems to me that it also exists even if a judgment has been rendered that the employer did not breach the collective bargaining agreement in the particular manner alleged by the plaintiff-employee.
Storey v. Local 327, Int‘l Bhd. of Teamsters, 759 F.2d 517 (6th Cir.1985), citing Vaca v. Sipes, stated:
The Supreme Court and various lower courts have recognized a cause of action for breach of a union‘s duty of fair representation which does not depend on section 301 as a jurisdictional base. In Vaca v. Sipes the Supreme Court stated that a primary justification for the preemption doctrine “is not applicable to cases involving alleged breaches of the union‘s duty of fair representation.” 386 U.S. at 180-81, 87 S.Ct. at 911-12.
The duty of fair representation does not arise out of a collective bargaining agreement; it flows from the union‘s statutory position as exclusive representative and exists both before and after the execution of an agreement.
759 F.2d at 523. Storey also relied upon Amalgamated Assoc. of Street Railway Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), in reaching that decision, and that case involved a suit against the employer, Kroger, despite the employee plaintiffs’ contention that no valid collective bargaining agreement was in effect at the pertinent time. There was implicated then in Storey an interrelationship between the employee, the union, and the employer. In Beriault v. Local 40, I.L. & W. Union, 501 F.2d 258 (9th Cir.1974), the employee sued both the employer for breach of contract and the union for failure to represent properly. Although the claim against the employer was dismissed, the court held that the claim for unfair representation against the union might be pursued. I believe plaintiff White in this case should similarly be permitted to pursue his claim against the union.
Because I believe Breininger changed what this court, under Bagsby, Breininger, and Adkins, had believed to be the law in a hybrid § 301 fair representation case, I would hold that we should reverse the judgment rendered on the defendant union‘s motion for directed verdict. I dissent, therefore, from the affirming of the judgment for the union and would remand for further proceedings against it.
Notes
But it is quite another matter to suggest that erroneous arbitration decisions must stand even though the employee‘s representation by the union has been dishonest, in bad faith, or discriminatory; for in that event error and injustice of the grossest sort would multiply.Under the rule announced by the Court of Appeals, unless the employer is implicated in the Union‘s malfeasance or has otherwise caused the arbitral process to err, petitioners would have no remedy against Anchor even though they are successful in proving the Union‘s bad faith, the falsity of the charges against them, and the breach of contract by Anchor by discharging without cause. This rule would apparently govern even in circumstances where it is shown that a union manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members. As is the case where there has been a failure to exhaust, however, we cannot believe that Congress intended to foreclose the employee from his § 301 remedy otherwise available against the employer if the contractual processes have been seriously flawed by the union‘s breach of its duty to represent employees honestly and in good faith and without invidious discrimination or arbitrary conduct.
Petitioners, if they prove an erroneous discharge and the Union‘s breach of duty tainting the decision of the joint committee, are
entitled to an appropriate remedy against the employer as well as the Union. It was error to affirm the District Court‘s final dismissal of petitioner‘s action against Anchor. 424 U.S. at 570, 571, 572, 96 S.Ct. at 1059, 1059, 1060.It is also worth noting that the Court cited Buchholtz v. Swift & Co., 609 F.2d 317 (8th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 672, 62 L.Ed.2d 648 (1980) for the proposition that section 1337 jurisdiction over separate fair representation claims has earned wide acceptance in the lower federal courts. In Buchholtz, the relationship between a union member, his union, and the employer was implicated, but the Eighth Circuit held that the duty of fair representation claim had no vitality separate from the breach of collective bargaining agreement claim. 609 F.2d at 327 (“because there was no contractual obligation on the part of [the employer] to pay the vacation pay, ... the union could not be held guilty of unfair representation“). Judges Lay and McMillian, dissenting from the court‘s denial of rehearing en banc, wrote that “[Resolution of the contract claim in favor [of the employer] should not dispose of the claim against the union....” Id. at 331. This assertion was not reflective of the Eighth Circuit‘s holding in Buchholtz.
This is a succinct and unequivocal expression of a classic hybrid 301 cause of action.This is a complaint of breach of a collective bargaining agreement arising from plaintiff‘s discharge from the employment of the defendant employer without just cause, and of the duty of fair representation by plaintiff‘s union in processing his grievance.