Walker v. Consolidated Freightways, Inc.

SPROUSE, Circuit Judge,

concurring in part and dissenting in part:

I respectfully dissent from the conclusion reached in Parts III and IV of the majority’s opinion and would reverse. I concur in Parts I, II, and although I would not have reached the issue discussed in Part V, in my view, it is correctly resolved.

The district court correctly acknowl*383edged that an arbitral body1 has authority to interpret a contract. It held, however, that the Bi-State Committee rewrote, rather than interpreted, express terms of the contract. The majority agrees with that conclusion, but I cannot.

The majority concedes that courts normally cannot disturb an arbitrable finding that draws its essence from the governing collective bargaining contract. United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987). As the Supreme Court stated:

[T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.

Misco, 484 U.S. at 38, 108 S.Ct. at 370. In holding that the arbitrator had not exceeded its authority, the Misco Court further stated that “[n]o dishonesty is alleged; only improvident, even silly, factfinding is claimed. This is hardly a sufficient basis for disregarding what the agent appointed by the parties determined to be the historical facts.” Id. at 39, 108 S.Ct. at 371.

Similarly, in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the Supreme Court warned of the dangers of judicial intervention in an arbitration decision, stating:

Respondent’s major argument seems to be that by applying correct principles of law to the interpretation of the collective bargaining agreement it can be determined that the agreement did not so provide, and that therefore the arbitrator’s decision was not based upon the contract. The acceptance of this view would require courts, even under the standard arbitration clause, to review the merits of every construction of the contract. This plenary review by a court of the merits would make meaningless the provisions that the arbitrator’s decision is final, for in reality it would almost never be final.

United Steelworkers, 363 U.S. at 598-99, 80 S.Ct. at 1361-62.

Application of the principles articulated in United Steelworkers and Misco compels me to disagree with the district court’s conclusion that the grievance decision of March 20, 1986, did not draw its essence from the collective bargaining agreement. In arriving at this conclusion, I view differently the interpretative cohesiveness of sections 2 and 3. The former, virtually unchanged by the 1985 agreement, relates only to the measurement of distances between “zero mileage points.” Significantly, this section provides that “[a]ny change in mileage resulting from the above procedure shall not result in any retroactive pay to a driver or refund from a driver.” And, as previously stated by the majority, this section required actual measurement only when a dispute arose.

Section 3 states that, within six months, the parties must convert the mileage from zero point to terminal. Like section 2, section 3 also requires measurement of “over-the-road” mileage (from city to city) in the event of a dispute over the distance between specific cities. Plaintiffs contend that Williams’ grievance mandated calibration of all miles and that pay adjustments not made within six months after the effective date of the Carolina Supplement were to be paid retroactively. This contention, however, also reveals an inherent tension between sections 2 and 3. Section 2 did not require retroactive application, but, as the plaintiffs would interpret it, section 3 does. In my view, the language of sections 2 and 3 spawning this dispute is sufficiently ambiguous to permit interpretation. It presents the kind of dispute normally resolved through the agreed grievance procedures.

*384The drivers argue nevertheless that there is no authority in the disputed sections for the action of the Bi-State Committee advancing the retroactive date from December 1985 to May 1986. For that matter, however, there is no specific language fixing a retroactive date in the first place. The language of section 2 contained in the 1985 agreement states that “[n]o Employer shall change its present mileage pay until the above procedure has been followed, unless such change is agreed to by the .Local Union involved.” Section 3, in reference to the calculation of “spur” miles, states that “[o]nce the difference is established, the mileages will be adjusted.” The language of section 3 never specifically mandates retroactive pay adjustments, let alone a date for the adjustments.

While we might not necessarily agree with the Bi-State Committee’s interpretation of the conflicting sections, “courts have no business overruling [an arbitrator] because their interpretation of the contract [or facts] is different from his.” United Steelworkers, 363 U.S. at 599, 80 S.Ct. at 1362. The grievance machinery, as it was used here, falls considerably short of a perfect model. The mechanism employed for the resolution of mileage disputes, however, is one to which the union and employers have agreed in their collective bargaining contracts. Wise or unwise, efficient or inefficient, the parties’ resolution of their dispute over the meaning of sections 2 and 3 of the collective bargaining agreement resulted in an arbitrable interpretation— hot an amendment of the contract. Thus, in my view, the district court erred in concluding that the Committee’s decision did not “draw its essence” from the collective bargaining agreement and in its finding of a breach of duty to fairly represent based on its theory that the contract was amended rather than interpreted.2

The district court also found that Local 71 violated its duty of fair representation by, in part, unnecessarily delaying the mileage calibration and by delaying the processing of Walker's grievance. I agree with the majority that the standard for gauging a union’s performance in this context has not varied greatly in the past decades, and, of course, the majority correctly refers to the controlling principles of Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); Griffin v. Auto Workers, 469 F.2d 181, 183 (4th Cir.1972); and Wyatt v. Interstate & Ocean Transp. Co., 623 F.2d 888, 891 (4th Cir.1980).

Malicious or egregious delay in pursuing plaintiffs’ rights could be considered evidence of perfunctory conduct, unreasonableness, or even bad faith so as to constitute arbitrary action violative of the Vaca proscription. Here, however, no mystery surrounds the delays, and no evidence demonstrates unreasonable attitudes, unreasonable approaches, or arbitrary action on the part of either the union or the employers. Plaintiffs concede that Local 71 consistently contended that the contract language required conversion to terminal-to-terminal pay within six months of ratification and the record discloses that Local 71 advanced that position with fidelity. Local 71 also consistently contended that calibration of all miles, not just spur miles, must be completed within six months. However, the need to calibrate all miles, a development not contemplated by section 3, contributed greatly to the delay in the calibration process. Moreover, Local 71 believed that section 3 required retroactive pay and, thus, it did not foresee a sense of urgency in completing the process.

If Local 71 had pursued a tack different from the one it chose, the conversion time may have been shortened and the new mileage implemented within the six-month period or; failing that, there may have been ways it could have produced an interpretation of the contract requiring a retroactive implementation to December 1, 1985. However, if these are failures on the part of the union, they do not rise to the level of bad faith and/or arbitrary action. As we stated in Ash:

*385Simple negligence, ineffectiveness, or poor judgment is insufficient to establish a breach of the union’s duty. Rather, the union’s conduct must be “grossly deficient” or in reckless disregard of the member’s rights....
[A] flawless performance is not required to fulfill the union’s duty.

Ash v. United Parcel Service, Inc., 800 F.2d 409, 411 (4th Cir.1986) (citations omitted). Moreover, we observed in Smith v. United Steelworkers of America, Local 7898, 834 F.2d 93, 96 (4th Cir.1987), “[a] union’s exercise of its judgment need not appear as wise in the glaring light of hindsight, and a violation of the duty of fair representation is not made out by proof that the union made a mistake in judgment.” Consequently, I would find no breach by the union as a result of the asserted delay.

Finally, in my view, plaintiffs’ contention that Local 71 violated its duty by delaying Walker’s grievance flies in the face of the stipulation of facts entered into by the parties.3 Even without these admissions, no evidence suggests that the delays resulted from bad faith. Walker’s grievances were interwoven with the ongoing procedures for pursuing the union’s version of the meaning of sections 2 and 3 of the Carolina Supplement and securing to the advantage of its members the measurement of trunk miles. It is undisputed that Local 71 officials were as convinced as was Walker that the implementation date for the new mileage system should be retroactive to December 1, 1985. Nothing in the record indicates any reasons for the union to have deviated from that position. Consequently, I feel the district court also erred in finding a breach of the duty to fairly represent flowing from the delay in processing Walker’s grievances.

. The majority acknowledges that the Bi-State Committee is the responsible body designated by the collective bargaining agreement to process grievances.

. Since, in my opinion, the contract had not been amended, it follows that the union did not violate either Section 301 of the Labor-Management Relations Act or Section 101(a) of the Labor-Management Reporting and Disclosure Act, as contended by the plaintiffs.

. Prior to trial, the parties entered into a stipulation of facts, which included the following:

77. The delay in processing Walker’s grievance was explained by Bowman. He was sick and was operated on in both March and April 1986. He didn't meet with Jenkins of Consolidated until May, 1986, and he filed the grievance with the Bi-State Committee on May 9, 1986. The Committee didn’t get to it in June; there was no meeting in July, and Bowman postponed it in August so that it could be heard as the first case in September, 1986.
80. On or about August 11, 1986, Walker and Local 71 Business Agent Ken Bowman met at Local 71’s office to discuss the submission of the grievances to the Bi-State Committee.
81. Local 71 submitted the various Walker grievances to the Bi-State Committee on May 9, 1986. Local 71 summarized the grievances as follows:
On September 9, 1985, the Carolina Negotiating Committee met to set forth rules, regulations, and guidelines that were to be followed in logging miles from terminal to terminal. It was agreed the mileage checks would be submitted to the Bi-State Grievance Committee on November 20, 1985 and implemented by all carriers on December 1, 1985. The Union is requesting all new mileage figures be rolled back to and paid to all drivers retroac-five to December 1, 1985 just as the carriers agreed to on September 9, 1985.
84. Walker had the opportunity to introduce whatever documents he desired and to speak freely while presenting Local 71’s case.
85. Bowman did not do anything improper at the hearing on Case 259-R-86.
93. Walker could not identify any facts of collusion between the Unions and the Employers.
95. Walker does not accuse Sides, Bowman, or any official of Local 71 of any bad faith or wrongdoing in connection with the terminal-to-terminal implementation or his grievance or his representation at the Bi-State Committee hearing.
96. The Plaintiffs know of no misconduct by Local 71 except not requiring the ratification vote.
97. Up to the time of the Bi[-]State Decision on 9/16/86, Walker never complained or objected to Bowman about his representation or presentation to the Bi-State Committee.
101. Local 71 President, Conrad Sides, was upset at the Bi-State Committee decision which made the mileage effective May 4, 1987. He said that the Committee was "out of their mind.” Sides, like Bowman, always believed that the gate-to-gate should be effective December 1, 1985 in accordance with the Contract.