Plaintiffs, five women, were office clerical workers at the Detroit terminal of the Square Deal Cartage Co., a company engaged in the transportation of automobiles to local dealerships. In August 1977, Square Deal was purchased by Cassens Transport, Inc., another company in the same industry. Plaintiffs were not retained by Cassens after the takeover. Square Deal’s driver, yard, and garage workers, all of whom are male, were retained by Cassens. The defendant, a local Teamsters union, represented the clerical as well as the driver, yard, and garage workers.
When they worked at Square Deal, the driver and yard workers had the same seniority list, but the garage and office workers each had a separate list. At the time of the merger, Cassens had drivers and yard workers on separate seniority lists represented by the same local union, but Cas-sens had no garage workers and had only nonunion office workers at its company headquarters in Illinois. In an effort to prevent any seniority and “bumping” problems as a result of the merger, the Central Southern Conference Automobile Transporters Joint Arbitration Committee recommended that Square Deal’s drivers and yard workers be given an opportunity to bid on either driver or yard jobs at Cas-sens, and that Cassens should then prepare driver and yard workers seniority lists for the merged company, dovetailing the two companies’ drivers and yard workers according to their respective years of service at either company. Office workers were not allowed to bid on non-office jobs, however, regardless of their accrued seniority. As a result, plaintiffs were left jobless by the merger.
In early 1978, four plaintiffs filed against Cassens unfair labor practice charges with the NLRB and Title VII sex discrimination charges with the EEOC. The EEOC issued right to sue notices against Cassens on January 22, 1979. None of the plaintiffs filed unfair labor practice or Title VII charges against the union with the NLRB or the EEOC. They settled their unfair labor practice case against Cassens.
On November 13, 1978, plaintiffs filed a complaint in the Circuit Court of Wayne County, Michigan. The original complaint contained three counts. The first, against Cassens and the union, was based on the contention that their agreement “excluded Plaintiffs from ... bidding rights ... because they were women.” This count recognized that bidding under the agreement was “in accordance with the seniority they had as employees of Square Deal Transport,” but plaintiffs claimed the negotiation between defendants recognizing seniority
The next count concerned the employer only and claimed a refusal to hire plaintiffs as “yard” workers solely because of their sex. We are not concerned here with this charge. Count III was against the defendant union for failing “to represent Plaintiffs’ interests in their negotiations” with Cassens with respect to bidding on jobs, and in refusing to represent plaintiffs by reason of their sex in their grievances that Cassens “wrongfully refused to hire” them for “yard” work in violation of “state and Federal law” with respect to equal employment. Plaintiffs later amended the complaint to add a Title VII complaint against Cassens and the union, which was found by this court to have no merit against the union based on procedural failures, and was accordingly dismissed. The amended complaint also alleged a pendent cause of action against both defendants under “Michigan’s Civil Rights Act, M.C.L.A. § 37.2101 et seq.”
We dismissed the plaintiffs’ fair representation claim because plaintiffs failed to file their claim within the limitations period set out in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). See Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir.1984). In our prior opinion, we set out, in part, the following facts:
At the time of the merger, Cassens had drivers and yard workers on separate seniority lists represented by the same local union, but Cassens had no garage workers and had only non-union office workers at its company headquarters in Illinois____
The efforts of plaintiffs and their Union to persuade Cassens’ management to retain plaintiffs in some capacity after the merger were unsuccessful. When plaintiffs became aware that Cassens might not retain them after the merger, plaintiffs met with Wilson Holsinger, a union business agent, who testified that he first learned in August 1977 that Cas-sens did not plan to retain the plaintiffs and that Cassens Vice President Shashek told him he did not want any Union employees in the office and believed the work in the computerized Cassens office in Illinois to be beyond plaintiffs’ abilities. Holsinger filed a grievance on behalf of the office workers, but plaintiffs testified he discouraged them from applying to do yard work at the merged company even though workers on the old Square Deal combined driver and yard worker list could obtain “extra” work without seniority in the garage and garage workers could obtain temporary work in the yard or as drivers.
748 F.2d at 1085.
In remanding the case, we stated:
In her opinion below, the District Judge focuses primarily on the federal claims and fails to make specific findings of fact and conclusions of law concerning the state claim under Michigan’s Elliott-Larsen Act, Mich.Comp.Laws Ann. § 37.2204(a)-(d). We are unable to determine on review which particular sections of that Act are at issue and what particular Union conduct the District Judge found to violate the Act. We are unable to determine from the opinion below whether the District Judge found that the Union’s actions constituted illegal exclusion or expulsion from membership, classification or segregation of membership, efforts to cause or attempt to cause Cassens to violate the Elliott-Larsen Act, failure to adequately represent plaintiffs in the grievance process, or a combination of some or all of these prohibited activities.
748 F.2d at 1086-87.
The district court amended her prior decision upon the remand by adding the following language:
Cassens did not want women in its terminal and the defendant union contrived that, despite its obligation to these women members, there would be none. Its course of conduct to the end constitutes violations of all the Elliott-Larsen Civil Rights Act’s prohibitions against labor union conduct.
Page 859It again must be noted, in evaluating plaintiffs’ prima facie case under Elliott-Larsen, that Michigan courts have uniformly applied the federal substantive law of discrimination, and the federal allocation of burdens, in adjudicating cases filed under Elliott-Larsen.
Accordingly, inasmuch as plaintiffs have made a prima facie case that the union’s breach of its duty to fairly represent them because of their sex constituted a violation of Title VII, those facts also constitute a violation of M.C.L.A. § 37.2204(a), as a failure to fairly and adequately represent members in the grievance process because of sex. Similarly, the above-outlined facts present a prima facie case of violation of M.C.L.A. § 37.2204(a) and (b), as (a) discrimination against a member because of sex, and (b) limiting, segregating, and classifying members; failing and refusing to refer for employment in a way which would deprive an individual of employment opportunity and which would adversely affect employment conditions because of sex.
Finally, a prima facie case was made under M.C.L.A. § 37.2204(c) that this union caused or attempted to cause an employer to violate this article. By foreclosing plaintiffs, because of their office-worker classification, from participating in the Bid for Cassens’ yardwork which the Arbitration Committee had ordered to be conducted by Master (Company) seniority, the defendant union made it inevitable that Cassens maintain an all-male yard. Moreover, by refusing even to advise plaintiffs that it was authorizing Cassens to hire casual yard worker/clericals after the bid, and by refusing to meet with plaintiffs and Cassens management on the subject of jobs, this defendant union attempted to cause an employer to violate M.C.L.A. § 37.2202(a) by failing or refusing to hire ... because of sex.
Jones v. Cassens Transport, 617 F.Supp. 869, 885 (E.D.Mich.1985) (emphasis added, citations omitted).
Section 204 of the Elliott-Larsen Act, M.C.L.A. § 37.2204, provides as follows:
37.2204. Labor organizations; prohibited acts
Sec. 204. A labor organization shall not:
(a) Exclude or expel from membership, or otherwise discriminate against, a member or applicant for membership because of religion, race, color, national origin, age, sex, height, weight, or marital status.
. (b) Limit, segregate, or classify membership or applicants for membership, or classify or fail or refuse to refer for employment an individual in a way which would deprive or tend to deprive that individual of an employment opportunity, or which would limit an employment opportunity, or which would adversely affect wages, hours, or employment conditions, or otherwise adversely affect the status of an employee or an applicant for employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Cause or attempt to cause an employer to violate this article.
(d) Fail to fairly and adequately represent a member in a grievance process because of religion, race, color, national origin, age, sex, height, weight, or marital status.
The district court refers to the union’s failure fairly to represent the female plaintiffs under § 37.22041 without referring to § 37.2211 which recognizes that it is not an unlawful employment practice under the Act to take employment actions “pursuant to a bona fide seniority or merit system.” Section 37.2211 tracks the language of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which has been held to mean that
although a seniority system tends to perpetuate effects of pre-Act discrimination resulting in one group having greater seniority than another, Title VII does not outlaw, destroy or water down an otherPage 860wise neutral, legitimate seniority system or the vested seniority rights attendant thereto simply because the employer had engaged in discriminatory hiring or promotion prior to the passage of the Act.
Detroit Police Officers Ass’n v. Young, 446 F.Supp. 979, 1008 (E.D.Mich.1978) (citing Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)), rev’d on other grounds, 608 F.2d 671 (6th Cir.1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981).
The district court has made the finding of liability against defendant union in the context of its “duty to represent” the plaintiffs under M.C.L.A. § 37.2204.
The district court opinion makes reference to breach of duty to represent fairly “in the grievance process because of sex.” In the original complaint itself, plaintiffs recognized that the bidding for positions after the merger was in accord with past seniority rights while employed at Square Deal Transport, but they maintained this effectuated sex discrimination. This contention would seem to run afoul of the Michigan § 211 provision recognizing a legitimate seniority system. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). The district court failed to take this into account and held erroneously that the union breached its duty to represent fairly and adequately by reason of sex discrimination simply by failing to insist that the collective bargaining agreement be carried out so as to permit plaintiffs to transfer into another bargaining unit.
The claim of sex discrimination against a union under the Elliott-Larsen Act is akin to the claim of a union’s failure “fairly and adequately [to] represent a member ... because of the member’s handicap” as set out in M.C.L.A. § 37.1204(d).2 The Michigan Handicappers’ Act, above noted, precludes, in effect, discrimination by reason of an employee’s handicap instead of the employee’s sex, as is involved in the instant case. This duty not to fail to represent fairly under the Michigan Handicappers’ Act was held by this court recently not to be an imposed new duty on a union “not already clearly present under existing federal labor law.” Maynard v. Revere Copper Products, Inc., 773 F.2d 733, 735 (6th Cir.1985). We stated further in Maynard:
The doctrine of preemption is firmly established in labor law. The duty of fair representation relates to an area of labor law which has been so fully occupied by Congress as to foreclose state regulation. Whether union conduct constitutes a breach of the duty of fair representation is a question of federal law. Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971). The fact that an action for failure to fairly represent a member may be brought in a state court, see Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), is beside the point. Regardless of the forum in which the claim is presented, the case is controlled by federal law. Id. at 343-44, 84 S.Ct. at 368-69.
773 F.2d at 735. The underlying collective bargaining agreement in this case, furthermore, contained an express non-discrimination section dealing with sex as well as other types of discrimination. The alleged underlying discriminatory actions in this case, then, clearly relate to a breach of the collective bargaining agreement and to the failure of the union fairly to represent the plaintiffs because of their sex. Interpretation of the contract was necessary to determine seniority and bargaining unit rights in this case. Interpretation of the contract was also inexorably intertwined in the union’s delicate problem of representing different bargaining units in the merger of the operations after the Cassens’ acquisi
We believe that Maynard v. Revere Copper Products, Inc., 773 F.2d 733 (6th Cir1985), is controlling here. The plaintiffs’ action under state law is essentially the same as their claims under federal law against the union. They do not claim to be excluded from union membership, nor can they claim that seniority under the collective bargaining agreement was not followed. The employer and the union negotiated this collective bargaining agreement, and there is nothing in the record that plaintiffs opposed adoption of the collective bargaining agreement when consummated by the employer and the union. No grievance was filed by plaintiffs prior to the effectuation of the merger. There were no new rights created under the Michigan law nor any new duty imposed upon the union not already present under existing federal law. As in Maynard, essentially the same claim for failure to represent was previously found to be time barred under federal law which applied. This kind of claim, a failure to represent fairly, is essentially a matter of federal law, “an area of labor law which has been so fully occupied by Congress” as to foreclose or to preempt state regulation. Id. at 735.
Also, as found in Maynard, it would in this case, whose facts are analogous in many respects to the facts in Maynard, “be anomalous to hold that the same claim survived the defense of limitations [under DelCostello, supra] because it was stated in terms of the state law designed to protect ... workers from discrimination.” Id. at 735. We see no essential difference between an underlying claim of handicap discrimination and a claim of sex discrimination as a basis for assertion of a failure to represent fairly, as a matter of essential state or local interest. Such a charge is not essentially different from a claim of unfair labor practice by reason of some other kind of invidious discrimination on the part of a union or on the part of an employer. Unfair representation, then, is unfair representation whether by reason of sex discrimination, handicap discrimination, or a willful breach of responsibility to carry out clear terms of a collective bargaining agreement for the benefit of union members and employees. The claims of plaintiffs under these circumstances related to a failure fairly to represent or in respect to the collective bargaining agreement, must be deemed to be foreclosed and preempted. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).
The district court’s underlying rationale for its finding of a failure of fair representation by reason of sex was tied to that court’s assumptions and conclusions concerning the force and effect of the collective bargaining agreement with respect to separate bargaining unit seniority.
In our view the district court erred in its construction of the seniority system applicable to the Square Deal/Cassens merger. To understand the operation of that system, it is necessary to understand each of its component parts. The first level of seniority provided for office workers by the agreement is “terminal seniority.” Terminal seniority allows an office worker to bid for jobs available in his bargaining unit within a particular terminal. See National Master Automobile Transporters Agreement, Michigan Office Workers Supplement, Article 38, § 2 (“NMATA Supplement”). It is important to note that since office workers were restricted to a separate bargaining unit, terminal seniority could only be used to secure office work. “Company seniority” reflected an employee’s seniority within the entire company rather than just a particular jobsite. In the event of layoffs at a particular jobsite, a senior employee could exercise seniority rights to gain employment at a different office, at the expense of the junior employee holding that other job. As with terminal seniority, however, office workers exercising company seniority could only bump other office workers; they could not “cross-bump” union workers from the non-office bargaining units. See NMATA Supplement, Article 39, § 3.
We find no support for the district court’s construction of the merger provision. The provision itself contemplates that multiple lists could result from dovetailing. The merger provision directs that the office workers’ list from one company be merged with the office workers’ list from the other company — and that other bargaining unit lists be combined in the same way — in order to maintain the segregation of workers by their bargaining unit or job description. The contract does not envision that the event of a merger will allow office employees to do what they could not otherwise: cross-bump less senior employees from different bargaining units.
The district court relied on a number of instances in which cross-bumping was allowed — including the driver/yard “special bid” — to determine that cross-bumping was not prohibited. Whatever the evidence on bumping between other bargaining units, it is clear that the office unit was never allowed to bump into non-office jobs. Custom and practice therefore reinforce the clear language of the contract provision in prohibiting office workers from cross-bumping, and the office workers had no right to bid for non-office jobs either before or after the merger.
Thus, we find the district court’s analysis of the union’s seniority defense to be erroneous, and we consider this error directly to affect the union’s ultimate liability. The defense interposed by a bona fide seniority system would allow differences in compensation or terms, conditions or privileges of employment arising from the operation of such a seniority system. The disparity claimed here, however, is in the representation afforded female office workers by the union. The contract provisions required the union to deal with female office workers in a separate bargaining unit with no right to transfer seniority. The question is whether the defense of seniority within separate bargaining units without cross-bumping is a complete defense in this case to the substantive state law claims of plaintiffs.
The seniority defense involves labor contract interpretation and raises the specter of federal preemption under § 301 of the Labor Management Relations Act. To the extent, then, that the district court could hold the union to have been liable for failure fairly to represent plaintiffs by reason of the effect of the agreement concerning non-transferability of bargaining unit seniority, it is erroneous despite the adverse impact upon plaintiffs as females.
In summary, we construe the district court’s order and judgment essentially to have found the defendant union liable for its failure to represent the plaintiffs fairly. To the extent the district court imposed this liability by reason of the union’s adherence to the terms of the collective bargaining agreement, neutral on its face, with respect to seniority recognition and bidding procedures, this ruling is precluded by virtue of Michigan law (§ 37.2211), which respects the legitimacy of seniority. Apart from the union’s right to rely in good faith on the collective bargaining agreement seniority provisions, plaintiffs’ claim against the union for failure to represent fairly under the contract is preempted by federal law, which governs the interpretation of the collective bargaining agreement. The
Our analysis must focus, then, on whether the [state cause of action] confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the [state] claim is inextricably intertwined with consideration of the terms of the labor contract.
Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912.
Our concern in this case concerns the preemptive force of substantive federal law in respect to claims inextricably intertwined with the interpretation and construction of a collective bargaining agreement. We are not concerned with the question of jurisdiction between the NLRB and the federal courts. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), cited by the dissent, is therefore not relevant here.
What has been set out precludes liability against the union through implementation of the merger under the terms of the existing collective bargaining agreement. To the extent that plaintiffs make a claim of the union’s post-merger discrimination by way of intentionally excluding or participating in intentional exclusion of females from the other bargaining units, apart from any effort to carry over office seniority to “yard” work or to driving, they may have stated and proved a state cause of action independent of the foreclosed and preempted claims. A remand for purposes of considering that limited area of liability and potential damages in the case of qualified plaintiffs who sought such positions is accordingly directed. That claim, a direct claim of sex discrimination against the union, apart from unfair representation under the collective bargaining agreement, remains for further determination.
When the district court reheard this case after our remand order, it did not recompute the damages allocable to the union but merely reinstated the judgment entered in the earlier proceeding. Although the plaintiffs had settled with the co-defendant employer in the interceding period, the district court saw no need to recompute the damages when an appeal was pending on liability. Thus the earlier judgment was reaffirmed despite the plaintiffs’ concession that the union was entitled to a set-off to reflect the Cassens settlement. See Record on Motion to Affirm or Reinstate Judgment at 21.
The record on the motion to reinstate the judgment reflects genuine confusion as to the application of a set-off in favor of the union, the availability of prejudgment interest, and the appropriate interest rate for interest awards. As a result, regardless of our decision on preemption, we would be required to vacate the present damages award and remand for detailed findings of fact and conclusions of law on the intricate damages issues presented by this case.
When recomputing the damages, if any, attributable to the union’s misconduct, the district court may not allow damages for lost wages which resulted from the plaintiffs’ inability to use their office seniority to gain non-office jobs. The limitation on cross-bumping for office employees was established by the contract, not union misconduct. If the plaintiffs would have lost their jobs or failed to obtain new ones with Cassens even if the union were not guilty of claimed discrimination by way of excluding females entirely after the merger, the plaintiffs’ recovery should be limited to compensation for the union’s discrimination, if any, only in that respect. In other words, the union cannot be held liable for consequences it could not have prevented given the limitations imposed by the con
We do not disagree with the dissent in respect to a conclusion that plaintiffs may, on remand, establish entitlement to an award for damages for sexually discriminatory exclusion from bargaining units after the merger (not based on a claimed violation of the collective bargaining agreement).
Accordingly, the case is REMANDED to the district court for the sole purpose of determining liability and damages, if any, consistent with this opinion.
1.
While the district court refers to § 37.2204(a), (b), and (c), she uses the words of subsection (d) which is analogous to the federal § 301 charge which was dismissed.
2.
The language of this section tracks the language of the Elliott-Larsen Act (M.C.L.A. § 37.2204):
A labor organization shall not
Fail to fairly and adequately represent a member ... because of ... sex.