author: MORTON, Senior District Judge.

text:
    The ARMSTRONG RUBBER COMPANY, SOUTHEASTERN DIVISION v. LOCAL UNION 670, UNITED RUBBER WORKERS, AFL-CIO.
    No. 3-83-0978.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 29, 1985.

      Charles Hampton White, Nashville, Tenn., for plaintiff.
    Mike Passino, Nashville, Tenn., for defendant.
   MEMORANDUM

MORTON, Senior District Judge.

The defendant in the above-styled case has applied for an award of its attorneys’ fees pursuant to Local Rule 13(e) of this court. M.D.TenmR. 13(e) (1984). The defendant claims it is entitled to such an award because the plaintiff obstinately compelled it to protect the well-recognized right of one of its members through litigation. See Alyeska Pipeline Service Co. v. Wilderness Co., 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975); Haycraft v. Hollenbach, 606 F.2d 128, 133 (6th Cir.1979). For the reasons set forth below, the defendant shall recover from the plaintiff the reasonable costs and attorneys’ fees it incurred before this court.

The plaintiff brought this action pursuant to § 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185, to challenge an arbiter’s award entered on December 1, 1983. That award ordered reinstatement of a union employee named Akins whom the plaintiff had discharged for repeatedly taking excessive work breaks. Under the terms of the parties’ collective bargaining agreement, the plaintiff could discharge an employee with just cause for that employee’s fifth violation of the work break rule. The arbiter found, among other things, that the plaintiff had violated § 9(i) of the collective bargaining agreement when one of its agents handed Akins written notice of his second, third, and fourth disciplinary violations without a union representative being present. The arbiter held that the plaintiff’s violation of § 9(i) rendered all three of those disciplinary actions ineffective. Since Akins’ discharge with cause was premised upon his four prior violations, the arbiter’s invalidation of three of those violations rendered his discharge ineffective.

The plaintiff first attempted to challenge the arbiter’s decision through a motion to amend its complaint in the case of The Armstrong Rubber Company, Southeastern Division v. Union 670, United Rubber Workers, AFL-CIO-CLC, Civ. No. 3-83-0712 (M.D.Tenn. December 28, 1983) (hereinafter Copass). In that case, the arbiter had decided that the plaintiff violated § 9(i) by giving a union employee named Copass written notice of his discharge without a union representative being present. This court denied the motion to amend. The plaintiff filed the present action on December 21, 1983.

On December 28, 1983, this court affirmed the arbiter’s decision in the Copass case because it was based upon a permissible construction of § 9(i).

On January 18, 1984, the defendant filed its answer, counterclaim and motion for summary judgment in this case. In its pleadings and motion for summary judgment, the defendant requested its reasonable costs and attorneys’ fees on the ground that the plaintiff’s appeal of the arbiter’s award was a bad faith effort to harrass the defendant and its members. See Alyeska Pipeline Co., supra; Haycraft, supra. The plaintiff responded with its own motion for summary judgment and an answer to the counterclaim.

On May 31, 1984, this court ruled on the cross motions for summary judgment as follows: “In accordance with the memorandum contemporaneously filed, the motion for summary judgment by the plaintiff is overruled and denied, and the motion for summary judgment by the defendant is granted. The case is hereby dismissed.” The memorandum accompanying the order explained that the defendant’s motion for summary judgment was granted because the arbiter’s ruling that Akins had been notified of disciplinary action in violation of § 9(i) was a permissible interpretation of the collective bargaining agreement.

The defendant filed its pending application for attorneys’ fees on June 25, 1984. The plaintiff has objected to that application on two grounds. First, it argues that the defendant’s application is untimely. Second, it alleges that it did not litigate this case in bad faith. These defenses shall be examined in turn.

The plaintiff contends that the defendant’s motion for attorney’s fees is one to alter or amend the judgment, and, thus, had to be filed within ten (10) days of entry of judgment. Fed.R.Civ.P. 59(e). The plaintiff grounds this contention on alternative theories.

First, the plaintiff asserts that since the defendant requested its attorneys’ fees in its counterclaim and motion for summary judgment, the court’s failure to award them in the final order disposed of that request. However, an equally pláusible argument can be made that the complete failure of the court to rule upon a request for relief means that its order is not a final one. See Gordon v. Heimann, 715 F.2d 531, 538-39 (11th Cir.1983). As is explained below, the court finds that the judgment entered in this case did not deny the defendant’s request for attorneys’ fees.

Second, the plaintiff argues that even if the court’s order of May 31, 1984, did not explicitly dispose of the defendant’s request for attorneys’ fees, that request, based as it was upon the plaintiff’s alleged bad faith, was so inextricably intertwined with the merits of the controversy that it must be deemed a motion to alter or amend the judgment. See Fed.R.Civ.P. 59(e). As authority for this proposition the plaintiff cites the case of Snyder v. Leake, 87 F.R.D. 362 (N.D.Miss.1980). It does appear that the Fourth, Fifth and Seventh Circuits have taken the position that an inquiry must be made on a case-by-case basis to determine whether an application for attorneys’ fees is integrally related to the proceedings on the merits or collateral to them. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1164 (5th Cir.1984) (fee awards in a RICO civil action integral to the merits); Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143, 1147 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983) (fee awards in an action for failure to pay maintenance and care integral to the merits); Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 658 (7th Cir.1981) (fees awarded under 15 U.S.C. § 1117 for bad faith litigation of a trademark claim integrally related to the merits); Wright v. Jackson, 522 F.2d 955, 957-58 (4th Cir. 1975) (fees awarded for obduracy integrally related to the merits); Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir.1971) (fees awarded for bad faith integrally related to the merits). But see Overnight Transportation Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 793 (7th Cir.1983) (fees awarded pursuant to 28 U.S.C. § 1927 collateral to the merits); Terket v. Lund, 623 F.2d 29, 34 (7th Cir.1980) (dictum) (fees awarded to defendants pursuant to 42 U.S.C. § 1988 collateral to the merits). If a request for fees is deemed integrally related to the merits of an action, these courts hold that it must be treated as a motion to alter or amend the judgment which must be filed within 10 days of entry of the judgment. Hairline Creations, Inc., supra; Stacy, supra; Snyder, supra; Fed.R. Civ.P. 59(e). If the request for fees is found to be collateral to the proceedings on the merits, it is treated as a motion for costs subject only to the time limit of reasonableness implied in Fed.R.Civ.P. 54(d). Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir.1980) (fee awards pursuant to 42 U.S.C. § 1988 collateral to the merits). One could draw a negative inference from language in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) that would support this dichotomy between integral and collateral requests for attorneys’ fees. White v. New Hampshire, supra, at 452, 102 S.Ct. at 1166.

The better reasoned approach, however, is to treat all requests for attorneys’ fees alike. As the Eleventh Circuit has stated,

Perpetrating the dichotomy established by Stacy v. Williams, 446 F.2d 1366 (5th Cir.1971) and Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), can only result in future timing conflicts like the ones in this case. Most important, the Supreme Court’s emphasis in White v. New Hampshire of the limited role of Fed.R. Civ.P. 59(e) suggests that attorneys’ fees requests should never be governed by that time limitation.

Gordon, supra, at 538; accord, International Association of Bridge, etc. v. Madison Industries, Inc., 733 F.2d 656, 659 (9th Cir.1984); Cox v. Flood, 683 F.2d 330, 331 (10th Cir.1982); Obin v. District No. 9 of the International Association of Machinists & Aerospace Workers, 651 F.2d 574, 583-84 (8th Cir.1981). While it is true that fee awards based on a party’s bad faith require an inquiry into the merits of an action, the same can be said of statutory fee awards made to prevailing defendants under Title VII, Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657 (1978), and 42 U.S.C. § 1988, Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980). Yet, in White v. New Hampshire the Supreme Court gave no indication that it would treat prevailing defendants’ requests for fees pursuant to 42 U.S.C. § 1988 as motions to alter or amend the judgment. To the contrary, it suggested that Fed.R.Civ.P. 59(e) should never govern the time for filing applications for attorneys’ fees. See Gordon, supra.

All the cases addressing the timely filing of requests for attorneys’ fees seem concerned that if those requests are treated as ones for costs they may be made long after the facts and controlling legal principles have faded in the judge’s memory. That danger is obviously foreclosed where, as in this district, there is a local rule prescribing the time within which a request for attorneys’ fees can be filed.

Therefore, it shall be the rule in this court that all requests for attorneys’ fees not explicitly ruled upon by the court shall be timely if they are filed within the period prescribed by Local Rule 13(e). See M.D.Tenn.R. 13(e) (1984). This rule shall apply regardless of whether a request for attorneys’ fees is made in the pleadings, during litigation, or by post-judgment motion. Conversely, if a request for attorneys’ fees is made before judgment on the merits is entered and no ruling is made on that request in or prior to the judgment, the request for attorneys’ fees must be renewed within the period set forth in Local Rule 13(e), or it will be time-barred. By adopting a bright line rule, all concerned avoid the uncertainty that inheres in judging whether a fee request is integral or collateral to the proceedings on the merits. Accordingly, the court finds that the defendant’s request for attorneys’ fees was timely filed.

The plaintiff also alleges that it cannot be mulcted for the defendants’ attorneys’ fees because it did not pursue this litigation in bad faith. The Sixth Circuit has defined “bad faith” “broadly to include acts of ‘obdurate obstinacy,’ or conduct that has compelled [one’s opponent] to litigate recognized legal rights clearly owed.” Haycraft, supra, at 133; accord, Sharrow v. Fish, 501 F.Supp. 202, 205 (S.D.N.Y. 1980), aff'd without opinion, 659 F.2d 1062 (2d Cir.1981).

Applying that standard to this case, the court finds that the plaintiff acted in bad faith by filing and continuing to litigate this suit. The second disciplinary action against Akins was clearly in violation of § 9(i). That was apparent from the result reached in two earlier arbitration decisions. See Arbitration Decisions GG-H-13 (March 24, 1976) and AMK-NV-7 (March 29, 1982). The fact that even one of Akins’s prior censures was invalid put the plaintiff on notice that his discharge was without just cause. Once the Copass judgment was entered it became equally clear that Akins’s third and fourth censures were invalid.

The plaintiff protests that it had a right to attempt to distinguish prior decisions and to urge the court to reconsider its holding in Copass. While both of these contentions are correct in the abstract, neither justifies the plaintiff’s conduct in this case. No proof was tendered as to how Akins’s second censure differed from the controlling facts in GG-H-13 or AMK-NV-7. In Copass, a union representative was present when the employee appeared before management on the disciplinary charge, but not when the employee was handed written notice of the action taken on that charge. Those were exactly the facts relating to Akins’s third and fourth censures. In short, the fact of Akins’s case were simply not distinguishable from GG-H-13, AMK-NV-7 or Copass in any legally significant detail. The plaintiff did have a right to urge the court to reconsider the decision reached in Copass; but absent some newly discovered legal precedent or distinguishing facts, that request should have been made in a motion to alter or amend the judgment rendered in Copass, not in successive and repetitious litigation. The plaintiff did not advance any legal arguments in this case different from those it relied upon in Copass.

The plaintiff’s defense of the defendant’s request for attorneys’ fees is a different matter. As the preceding discussion indicates, the timeliness of the defendant’s request for fees was certainly contestable. Therefore, the 7.7 hours the defendant’s attorneys spent petitioning for their fees cannot be awarded under the bad faith (or any other) theory.

Having determined that the defendant is entitled to recover its reasonable attorneys’ fees and costs incurred in litigating the merits of this action, the court must now determine what fees are reasonable. The defendant seeks compensation for the following hours at the rates specified:

7.25 hours at $125 per hour
19.5 hours at $100 per hour
23.7 hours at $35 per hour

As for the reasonableness of the rates requested, this court agrees with the District of Columbia Court of Appeals that attorneys’ fees awarded private, for-profit law firms should be based upon the firm’s customary billing rates for similar services, so long as those rates fall within the range of reasonable rates charged by other firms for similar work in the same community. Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24-25 (D.C.Cir.1984). Although Laffey concerned a fee award under Title VII, its reasoning is persuasive with regard to this as well as all other court-awarded attorneys’ fees. Cf. Obin, supra, at 578 n. 5. There is no reason for courts to speculate about what the market rate is for a particular attorney’s services when it has empirical proof of that rate before it. Defendant’s counsel has averred that the rates charged the defendant were its customary rates for the services rendered. Those rates are within the reasonable range of prices charged for similar services in Nashville, Tennessee; therefore, the court finds the rates requested to be reasonable ones.

The defendant requests compensation for a total of 50.45 hours allegedly spent by its attorneys on this case. The itemization submitted by its attorneys lists only 42.95 hours. Since the itemization does not list who did what work at what rate, the court has no way of awarding the fees that are supported by the itemization. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983); M.D. Tenn.R. 13(e). The defendant will be given five days to amend its itemization to specify what work was performed at what rate. The defendant’s claim for legal expenses in the amount of $134.60 is reasonable and compensable under the bad faith theory. See Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). The court shall award these legal expenses when it determines the amount of attorneys’ fees to which the defendant is entitled.

An appropriate order shall be entered.

      . Rule 13(e) of the Local Rules of the United States District Court for the Middle District of Tennessee provides as follows:
      Application for award of attorneys’ fees shall be filed within thirty (30) days from the entry of judgment in the case. The application shall contain a memorandum brief as to the authority of the Court to make such an award, and as to why the applicant should be considered the "prevailing party,” if such is required for the award. The application shall also contain an affidavit of counsel setting out in detail the number of hours spent on each aspect of the case, the prevailing rate charged in the community for similar services, and any other factors which the Court should consider in making the award. Within ten (10) days after filing of the application, the party or parties against whom the award is requested shall respond with any objections thereto and an accompanying memorandum setting forth why the award is excessive, unwarranted, or unjust. Either party may request an oral hearing on the application and objections.
      M.D.Tenn.R. 13(e) (1984).

      . Section 9(i) of the collective bargaining agreement between the plaintiff and defendant provides:
      An employee will have a local union representative appear with him when he is required to appear before a representative of management for the purpose of receiving a reprimand, suspension, or discharge. Upon request, an employee will have a local union representative appear with him when he is required to appear in the office of a representative of management.

      . The plaintiff also alleged that § 301 of the Labor-Management Relations Act does not provide for an award of attorneys’ fees. That fact has no bearing on this case. The defendant is seeking its attorneys' fees on an equitable rather than statutory basis. Several courts have held that attorneys’ fees may be awarded under the Labor Acts for a party’s bad faith. See Hall v. Cole, 412 U.S. 1, 14, 93 S.Ct. 1943, 1950, 36 L.Ed.2d 702, 712 (1973); Varnes v. Local 91, Glass Bottle Blowers Association of the United States and Canada, 674 F.2d 1365, 1369 (11th Cir.1982); Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1320 (D.C.Cir.1980), rev'd on other grounds, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982); International Longshoremen's and Warehouseman's Union, Local 6 v. Cutter Laboratories, 552 F.Supp. 979 (N.D.Cal.1982).

      . The court is aware that several of the cases cited here and throughout the opinion address the issues of whether a decision on the merits is “final” and “appealable" prior to entry of a fee award, see Alcorn, supra; Holmes, supra, and whether a district court may award fees while an appeal on the merits is pending. See Overnight Transportation Co., supra; Terket, supra; Wright, supra. Nevertheless, these cases are persuasive authority on the issue presently before the court. As the Supreme Court reasoned, “If a merits judgment is final and appealable prior to the entry of a fee award, then the remaining fee issue must be ‘collateral’ to the decision on the merits.” White v. New Hampshire, supra, 455 U.S. at 452 n. 14, 102 S.Ct. at 1167 n. 14.

      . Of course, Congress has the authority to specify when a fee authorized by statute must be requested. The rule announced today applies only in the absence of a clearly expressed statutory timetable to the contrary.
      To be "clearly expressed” a statutory timetable must specifically set forth the time within which a request for attorneys’ fees must be filed. Such a contrary timetable cannot be inferred from the nature or purpose of the fee award as it was, for instance, in Hairline Creations, Inc., supra. See Gordon, supra.


source: Caselaw Access Project

author: LATCHUM, Senior District Judge.

license: Public Domain

text:
    James WALKER, Jr., Plaintiff, v. CHRYSLER CORPORATION, Defendant.
    Civ. A. No. 82-422-JLL.
    United States District Court, D. Delaware.
    Jan. 29, 1985.

      John A. Elzufon of Elzufon & Bailey, P.A., Wilmington, Del., for plaintiff.
    Joseph H. Geoghegan and W. Laird Stabler, III of Potter, Anderson & Corroon, Wilmington, Del., and William T. McLellan, Detroit, Mich., of counsel, for defendant.
   MEMORANDUM OPINION

LATCHUM, Senior District Judge.

This case arises from the abortive settlement efforts in a labor dispute between James Walker, Jr. (“Walker”), the plaintiff, and his employer, Chrysler Corporation (“Chrysler”), the defendant; it is presently before the Court on Chrysler’s motion for summary judgment. Because the Court agrees with Chrysler that Walker failed to exhaust his internal union appeals before bringing this suit, the motion will be granted.

I. BACKGROUND

On April 23,1981, Walker called his place of employment at Chrysler’s Newark, Delaware facility to report that he was ill and would be absent from work. (Docket Item [“D.I.”] 16 at 68-69.) Following its standard procedure, Chrysler sent to Walker a form which he was to have his physician fill out and return to Chrysler as verification of the medical problems entitling him to sick leave. (Id. at 23.) Walker did take the form to his doctor, but a mix-up in the doctor’s office greatly delayed its return to Chrysler. (D.I. 28 at Exhibit D.) In the meantime, having waited several weeks without receiving medical confirmation of Walker’s illness, Chrysler sent Walker a letter by registered mail asking him to report for work by June 9, 1981, or to satisfactorily prove that reasons beyond his control prevented him from doing so. (D.I. 25 at Exhibit 1.) The letter was returned to Chrysler marked “unclaimed.” (Id. at Exhibit 2.) When June ninth arrived without Walker having returned to work or having explained his absence, Walker’s seniority and its accompanying benefits were automatically forfeited by operation of the collective bargaining agreement between Chrysler and Walker’s labor union, the United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”). (D.I. 14 at 8.)

Walker learned of this consequence and at his behest Local 1183 of the UAW filed a grievance seeking reinstatement of Walker’s seniority and benefits. (D.I. 28 at Exhibit F.) The union unsuccessfully pressed the grievance at several of the stages provided for in the collective bargaining agreement until at the fourth level of grievance review (see D.I. 16 at 71; D.I. 25 at 4; D.I. 28 at 6) the UAW’s International Union withdrew the grievance “without prejudice” and Chrysler consented to the withdrawal. (D.I. 25 at Exhibit 5; D.I. 28 at Exhibit H.) Walker learned of this from a letter sent to him by the president of his local union (D.I. 28 at 7, Exhibit I); it stated in part, “[T]he International Union has notified me of the final disposition of your discharge. [Yjour grievance was withdrawn ... and ... is not subject to further review.” (D.I. 28 at Exhibit I.)

Walker believed that the union’s withdrawal of his grievance might have been based on the mistaken belief that he had independently reached a satisfactory settlement with Chrysler. (D.I. 16 at 74-75.) To correct any such misunderstanding, he went to his local union again to discuss the matter but was told that the union no longer represented him. (Id. at 75.) The Local president advised Walker to seek independent legal advice. (Id.)

Walker had already retained an attorney. Indeed, before the union withdrew Walker’s grievance, the present action had been filed in state court, removed to this court, and, by agreement of the parties, allowed to lay dormant until the UAW-Chrysler review of the grievance was finished. (D.I. 1; D.I. 4.) After learning that his client’s grievance had been withdrawn, Walker’s attorney wrote to the International Union to ask that it be reinstated (D.I. 28 at 7), but received a reply indicating there would be no reinstatement. (Id. at Exhibit J.) Walker then reactivated this suit.

II. LAW

Summary judgment shall be rendered upon motion of a party if that party demonstrates that there is no issue as to any material fact in the case and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 156, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Applying this standard is a three-step process: first, determining the basic issues, the matter or matters in dispute; second, ascertaining the law governing such matters; and third, using that law to gauge the materiality of any factual issues and to refine and resolve the legal issues.

From a reading of the complaint alone it would appear that the issue in this case is whether Chrysler’s termination of Walker’s seniority and benefits was somehow wrongful, either tortious or a breach of contract. (See D.I. 1 at Complaint 119.) Unlike an ordinary tort or contract case, however, this dispute is governed exclusively by Federal law because it arises from an employment relationship that is based on a collective bargaining agreement. (See supra n. 2.) Accordingly, despite Walker’s pleading of his claim as one arising under state law and as his own brief tacitly acknowledges (D.I. 28 at 3), this case must be decided under Federal law — specifically, under that body of law generated by 29 U.S.C. § 185(a).

After its passage as § 301(a) of the Labor Management Relations Act, the statute now codified at 29 U.S.C. § 185(a) was held by the United States Supreme Court to constitute congressional authorization for federal courts to create substantive law for the enforcement of collective bargaining agreements, such as the one involved in this case. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 451, 456, 77 S.Ct. 912, 915, 918, 1 L.Ed.2d 972 (1957). One principle of labor law which has thus been fashioned is that “[a]n employee seeking a remedy for an alleged breach of the collective-bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his ... employer under § 301(a)____” Clayton v. International Union, UAW, 451 U.S. 679, 681, 101 S.Ct. 2088, 2091, 68 L.Ed.2d 538 (1981). This exhaustion requirement is based on a “policy that encourages private rather than judicial resolution of disputes arising over collective-bargaining agreements.” Id. at 689, 101 S.Ct. at 2095. The same policy has prompted the Supreme Court to extend the exhaustion requirement to internal union appeals procedures, when, as in this case (see id. at 691 n. 18, 101 S.Ct. at 2096 n. 18; D.I. 25 at Exhibit 6), such procedures “can result in either complete relief to an aggrieved employee or reactivation of his grievance____” Clayton, 451 U.S. at 692, 101 S.Ct. at 2097. This requirement becomes particularly potent when, again as in this case (see D.I. 25 at Exhibit 6, § 5), the employee has a clear and unambiguous contractual obligation to resort first to the internal union process. See Local Union No. 1075, United Rubber, Cork, Linoleum and Plastic Workers of America v. United Rubber, Cork, Linoleum and Plastic Workers of America, 716 F.2d 182, 187 (3d Cir.1983). Nevertheless, courts may overlook a litigant’s failure to exhaust his internal union remedies if, for example,

union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; [or] ... the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks under § 301; [or] ... exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of this claim.

451 U.S. at 689, 101 S.Ct. at 2095. Under these and other circumstances of similar seriousness the exhaustion requirement can be relaxed because “the [Supreme] Court has created a case-by-case factual standard turning on the issue of when it becomes clear that further internal appeals would be futile.” Scott v. International Brotherhood of Teamsters, Chauffers, Warehousemen, and Helpers of America, 725 F.2d 226, 229 (3d Cir.1984).

That Walker failed to exhaust his internal union appeals is beyond dispute; the most that he can say is that he “reasonably exhausted” them (D.I. 28 at 3), by which he apparently means that he was not aware he had further recourse within the union (D.I. 16 at 76) and that he does not believe the internal appeals system will work for him. (D.I. 28 at 13.) Yet, notwithstanding his conception of “reasonable exhaustion,” the fact remains that Walker did not fully employ the relief procedures available to him within his union. The issue before the Court thus becomes whether some persuasive excuse exists for pardoning Walker’s failure to exhaust his internal union appeals. The Court is convinced there is none.

Walker lists four reasons why the exhaustion requirement should not be applied in this case. First, he asserts that union officials misled him by saying that his grievance was not subject to further review. (D.I. 28 at 14-19.) There is ample evidence that he was indeed so informed (see D.I. 16 at 75-76; D.I. 28 at Exhibits I and J), but, as Chrysler quite rightly points out, he should not have been misled because the union officials’ statements were correct. (See D.I. 31 at 5-6.) The officials told Walker that, as to his claims, the grievance negotiation process set up by the UAW and Chrysler had run its course; in their words, “your grievance was withdrawn ... and therefore is not subject to further review[;]” (D.I. 28 at Exhibit I) and “the grievance did not merit to the umpire [sic], therefore the grievance was taken out of procedure.” (Id. at Exhibit J.) These statements mention nothing about Walker’s right to launch the entirely separate process of appealing within the union its decision to withdraw his grievance. But even if union officials had flatly misstated the availability of intra-union remedies, that would still not serve as an excuse for Walker’s failure to learn and act on the truth. He "had a duty to acquaint himself with the nature and availability of union remedies. He was certainly not ‘justified in remaining in ignorance of the provisions governing his own union or, in fact, of relying on a statement by an officer that there was nothing he could do.’ ” Dezura v. Firestone Tire & Rubber Co., 470 F.Supp. 121, 124 (E.D.Pa.), aff'd without opinion, 612 F.2d 571 (3d Cir.1979) (citing Aldridge v. Ludwig-Honold Mfg. Co., 385 F.Supp. 695, 698 (E.D.Pa.1974), aff'd, 517 F.2d 1397 (3d Cir.), cert. denied, 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1975)).

Second, Walker contends that it is unreasonable to require exhaustion in cases like this because relief through internal union appeal is inadequate; he emphasizes that Chrysler alone, not the union, can reinstate an employee and restore his benefits. (D.I. 28 at 19.) The court addressed this same argument in Nanney v. Chrysler Corp., 600 F.Supp. 1248, 1252-1253 (D.Del.1984), and rejected it, saying “[such reasoning] overlooks the existence of a ‘reactivation-of-grievance’ agreement between Chrysler and the Union.” Id. at 1252. The agreement provides, in pertinent part, that

in those instances where the International Union, UAW, ... has reviewed the disposition of a grievance and found that such disposition was improperly effected by the Union or a Union representative involved, the UAW Chrysler Department may inform the Corporate Labor Relations Staff in writing that such grievance is reinstated in the grievance procedure at the step at which the original disposition of the grievance occurred.

(D.I. 25 at Exhibit 7.) According to the Supreme Court, this kind of provision is “presumably ... adequate.” Clayton, 451 U.S. at 691 n. 18, 101 S.Ct. at 2096 n. 18. The Court added that “if [an] employee obtained reactivation of his grievance through internal union procedures, ... the employee would be required to submit his claim to the collectively bargained dispute-resolution procedures. [E]xhaustion of internal remedies could result in final resolution of the employee’s contractual grievance through private rather than judicial avenues.” Id. at 692, 101 S.Ct. at 2097. These plain precedents prove that Walker’s intra-union remedy was indeed legally adequate.

Third, Walker urges that his failure to exhaust should be excused because pursuing his internal union appeals would have caused unreasonable delay in the adjudication of the merits of his case. (D.I. 28 at 20-21.) The Court agrees with Walker that, had he appealed the withdrawal of his grievance, he would have incurred “an incalculable amount of additional delay and expense____” (Id. at 20.) But the delay and expense are incalculable precisely because of Walker’s failure to appeal; his protestations of hardship in the appeals process are wholly hypothetical. When a union member has made no effort to take advantage of internal union remedies and provides the court with no evidence showing that those remedies are unlikely to produce some resolution of his case within a reasonable length of time, he cannot then claim a right to judicial relief. See Jenkins v. General Motors Corp., 364 F.Supp. 302, 308 (D.Del.1973).

Fourth and finally, Walker argues that his turning to this Court is not premature because his union had already “breached their [sic] duty of fair representation by arbitrarily withdrawing his grievance.” (D.I. 28 at 21.) Even if Walker’s characterization of the union’s action were correct, however, the point is irrelevant. The Supreme Court has stated unequivocally that if an internal union appeal could result in reactivation of an employee’s grievance, then the employee must pursue that appeal because

by reactivating the grievance, the union might be able to rectify the very wrong of which the employee complains — a breach of the duty of fair representation caused by the union’s failure to seek arbitration — and the employee would then be unable to satisfy the precondition to a § 301 suit against the employer.

Clayton, 451 U.S. at 692 n. 21, 101 S.Ct. at 2097 n. 21. The message could not be clearer, nor could the result of its application to these facts: despite Walker’s belief that he has been ill-represented by the UAW, before resorting to the court, he was obliged to work within the union for reactivation of his grievance.

III. CONCLUSION

The frequently declared national policy favoring private over judicial settlement of labor disputes, see, e.g., id. at 689, 101 S.Ct. at 2095; Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957), has as one of its concrete expressions the requirement that employees governed by a collective bargaining agreement must generally exhaust the remedies available to them under the agreement and through internal union appeals before bringing suit. Because Walker, without adequate excuse, has failed to abide by that requirement, Chrysler is entitled to summary judgment.

An order will be entered in accordance with this opinion.

      . Thus disposing of the plaintiff’s cause of action, the Court does not address the question of the timeliness of this suit.

      . "Termination of seniority,” the language used in the collective bargaining agreement, means essentially that Walker was fired. (See D.I. 35.)

      . The case is properly in this Court, but, in candor, the Court is not pleased with the manner in which removal has been accomplished. Instead of squarely facing and addressing at the outset the fact that Walker’s complaint at no point cites or speaks of federal law, that it is instead entirely couched in the language of a common law business tort suit, Chrysler stated in its petition for removal, "The Complaint ... purports to set forth a cause of action arising under ... 29 U.S.C. § 185." (D.I. 1 at 2.) That statement is misleading and sweeps under the rug important questions about the propriety of removal. Nevertheless, because it is clear from the complaint and Walker’s brief in opposition to this summary judgment motion that Walker is claiming to have been discharged in violation of the UAW-Chrysler collective bargaining agreement (see D.I. 1 at Complaint ¶ 9; D.I. 28 at 4-7), and because the law is clear that such a claim can only be made under federal law, see, e.g., AVCO Corp. v. Aero Lodge No. 735, Int'l Ass’n of Machinists and Aerospace Workers, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1211-12 (9th Cir. 1980), it follows that this case is one properly removeable under 28 U.S.C. § 1441.

      . Walker argues that the Supreme Court's decision in Clayton v. UAW, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981), and subsequent opinions of the United States Court of Appeals for the Third Circuit have sub silentio overruled Dezura. (D.I. 28 at 17.) The argument is unpersuasive. As this Court’s recent citation of Dezura indicates, the law in that opinion remains very much in force. See Nanney v. Chrysler Corp., 600 F.Supp. 1248, 1253 (D.Del. 1984).


author: SACHS, District Judge.

text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, and Air Transport District Lodge 142, International Association of Machinists and Aerospace Workers, Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.
    No. 84-6167-CV-SJ.
    United States District Court, W.D. Missouri, St. Joseph Division.
    Jan. 30, 1985.

      Michael D. Gordon, Janae L. Schaeffer, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, Mo., for plaintiffs.
    Dick H. Woods, Sr., Paul E. Donnelly, Dennis E. Garvin, Stinson, Mag & Fizzell, Kansas City, Mo., for defendant.
   MEMORANDUM AND ORDER

SACHS, District Judge.

This lawsuit against Trans World Airlines, Inc. (TWA) was filed on December 19, 1984, by District 142 of the Machinists Union (IAM) and by the International Union, seeking injunctive relief protecting the job assignments of TWA mechanics, some of whom are scheduled to be furloughed. The unions contend that TWA is taking action that would be in violation of the status quo provisions of Section 6 of the Railway Labor Act (45 U.S.C. § 156) in that, pending negotiations of a new contract, TWA is attempting unilaterally to alter the rules or working conditions pertaining to mechanics. In the alternative, the unions contend that if TWA’s actions are arguably authorized by the 1983 collective bargaining agreement, and the dispute is characterized as a “minor” one, subject to arbitration, injunctive relief should be granted preserving the status quo pending arbitration, so as to avoid irreparable harm to affected employees.

The principal controversy before the court involves discontinuance of mechanics’ work relating to the departure of aircraft and the substituting by TWA of ramp servicemen for signaling and related activities. TWA has recently begun using “power-back” departures at stations where mechanics are staffed. Under a powerback system, the aircraft moves away from the terminal by backing up under its own power, rather than being towed or pushed. A secondary controversy between the parties, involving possibly two layoffs, would reduce mechanics’ work involved in “walk-around” inspections and “logbook checks.”

At a conference with counsel on the day suit was filed, when plaintiffs sought a temporary restraining order, TWA agreed to postpone the effective day of furloughs relating to the powerback controversy until February 4, 1985. The court then scheduled a hearing on January 2,1985, on plaintiffs’ motion for a preliminary injunction. In order to accommodate the desired briefing schedule, TWA postponed the initial powerback furloughs until February 18, 1985. In its post-hearing brief filed January 18, 1985, TWA now offers to “continue to withhold any furlough action on those employees affected by implementation of powerback” during the course of arbitration, if arbitration is directed by the court, on the assumption that arbitration will be “conducted and completed within a reasonable time.” TWA does not, however, offer to withhold any furloughs resulting from the reduction in walk-around and logbook review activities.

At the hearing, TWA agreed that the record then made would suffice for final disposition of this case. Plaintiffs informally notified the court thereafter that they would rest their claim for permanent relief on the record made at the hearing. See January 8, 1985 letter to the court, Document No. 19.

The following opinion is entered in compliance with Rule 52(a), F.R.Civ.P.

SUMMARY OF PERTINENT FACTS

Mechanics, as the name implies, generally deal with the mechanical aspects of the aviation industry. Their hourly wage rate of about $17.00 is about $3.00 in excess of the hourly wage for ramp servicemen (Tr. I 75, 109), who are also represented by the plaintiff unions. Ramp servicemen’s job duties include handling baggage and other cargo, transporting food and supplies, and the servicing of aircraft and automotive equipment with fuel, oil and water. The 1983 IAM-TWA agreement provides, however, that a ramp serviceman “shall not perform any mechanical work of any nature.”

As a matter of longstanding practice, where mechanics are employed at a station, they have served as the ground crew used in bringing aircraft into place for unloading and have assisted in the physical departure of aircraft. Receipt and dispatch ground work includes signaling (guiding the aircraft), chocking and unchocking of wheels, and the connection and disconnection of communication and electrical lines.

Mechanics are specifically designated by contract to taxi aircraft, and to perform “towing and pushout”. See Article 4(a)(7) of the 1983 IAM-TWA agreement, Plaintiffs’ Exhibit 7. Tractors are driven by mechanics during the latter activity.

TWA wishes to eliminate mechanics from receipt and dispatch duties. It seeks a contract change reassigning towing and pushouts to ramp servicemen. It contends it already has authority to assign signaling duties and the like to ramp servicemen without a contract change, using the management rights clause in the IAM-TWA collective bargaining agreement. Article 3(c). Where tractors are not needed, as in powerbacks, TWA contends it needs no additional contract authority. The unions contend all arrival and departure ground work at mechanic-staffed stations is contractually guaranteed to mechanics because the contract provides that “the work of a mechanic shall consist of and include any and all work generally recognized as mechanics’ work.” Article 4(a)(7). The unions assert that historic assignment practices control under this provision, and, moreover, that the pushout provision of the contract was intended to apply comprehensively to all departures of aircraft in mechanic-staffed stations.

In addition to the contract dispute, which is longstanding, the current case presents the question whether, pending negotiations, TWA can eliminate mechanics from departure activities by unilaterally instituting the powerback procedure, and using ramp servicemen as ground signalmen who will also unchock wheels and disconnect lines. Although plaintiffs do not contest TWA’s contractual right to institute power-back at mechanic-staffed stations, they contend that assignment of receipt and dispatch ground work associated with this procedure to ramp servicemen (at mechanic-staffed stations) is a violation of the Act’s status quo provisions.

Furlough notices have been sent or will be sent to about 61 mechanics as the result of using powerback at mechanic-staffed stations and reassigning work to ramp servicemen. Furloughed mechanics will have contract rights to “bump” less senior mechanics or may transfer to other less skilled occupations (presumably bumping ramp servicemen, if willing to take reduced pay) rather than being furloughed or changing stations. Transfers may be to other cities, thus causing residential relocation and family problems. The bumping procedures would probably ultimately affect at least 180 employees, using a TWA estimate tripling the number of persons immediately affected.

In addition to the powerback controversy, a much smaller controversy has arisen because TWA has announced the elimination of certain maintenance operations, which could cause the furloughing of two mechanics somewhere in the TWA system. Specifically, TWA informed the plaintiffs in November, 1984 that implementation of Phase II of the Daily Service Maintenance Program would begin at the first of the year and would consist of eliminating (i) the mechanic walk-around check on through flights and turn-around flights and (ii) the logbook review on turn-around flights. Plaintiffs’ Exhibit 15. The walk-around and logbook check functions have been performed by mechanics for the past decade or more at mechanic-staffed stations. (Tr. I 70-71). Although these job tasks are not specified as exclusive mechanics’ work in the 1983 IAM-TWA agreement, Article 4(a)(6) does provide that “[a] Lead Mechanic will be required to review aircraft log books.” TWA contends that the maintenance changes are authorized by the management rights clause and that this controversy concerns solely a change in the time and place that mechanics’ work is performed by mechanics. The unions assert that the maintenance changes are a change in the status quo that is untimely during negotiations, if not unauthorized.

In July, 1983, a year before formal contract negotiations began, the union was notified that TWA intended to begin power-back operations at seven stations where there were no mechanics and intended to start powerbacking at other stations subsequently. Plaintiff’s Exhibit 18. The notice indicated that ramp servicemen would be used as a ground crew during powerbacking. Prior to November, 1984, TWA never supplied a timetable or other notice of imminent use of powerbacking at stations where mechanics would be relieved of ground crew dispatch duties. A union official apparently objected orally to the July, 1983, notice, insofar as it forecast power-back use without mechanic assistance at mechanic-staffed stations. (Tr. I 98-99) In any event, powerbacking (without using available mechanic ground assistance) was not initially scheduled until several months after new contract negotiations began, in August, 1984, and after the parties had reached a temporary impasse in negotiations.

The 1983 contract had an expiration date of October 31, 1984. Formal notice of negotiations was given by both sides in August, 1984. In advance of formal notice, however, the parties engaged in informal “pre-negotiation negotiation.” TWA advised the unions it intended to supplant mechanics in all receipt and dispatch duties, as an important economy measure. It is unclear whether TWA gave notice that it intended to obtain a contract change (other than the elimination of mechanics from “towing and pushouts”) or whether it simply indicated an intent to use powerbacking and reassignments under a claim of management rights. TWA was aware that the unions claimed receipt and dispatch duties as “mechanics’ work” under the 1983 contract and previous labor agreements. While it is improbable that TWA tacitly conceded that only a contract change would permit reassignment of all receipt and dispatch work from mechanics to ramp servicemen, it is clear that all such work was discussed together as one of six issues needing resolution by agreement. (Tr. I 86-7, 131-2). This could be accomplished by adding new provisions to the contract or simply agreeing on the interpretation of provisions in the existing contract. Change in the “pushback” assignment (one of the receipt and dispatch functions) was later described by TWA as the “cornerstone” of contract negotiations, and as an “absolutely necessary” change. (Tr. 1169— 70). TWA also advised that enlarged use of powerback operations had been withheld to avoid upsetting plaintiffs during contract negotiations and “because they [TWA] felt they could work these things out in the negotiations.” (Tr. I 179). See Plaintiffs’ Exhibit 38, union negotiator’s notes, at 4.

On October 23, 1984, TWA advised in writing that the powerback operation had not been previously extended to mechanic-staffed stations because TWA wanted to “create a climate” conducive to negotiating a contractual reassignment of pushback from mechanics to ramp servicemen. Plaintiffs’ Exhibit 14. TWA advised, however, that it could no longer “afford to be patient,” and would expand its powerback operations into mechanic-staffed stations.

Notices were given by TWA on November 29, 1984, that mechanic walk-arounds and logbook checks would be reduced (Plaintiffs’ Exhibit 15) and on November 30, 1984, that powerbacking operations would be expanded, without using mechanics for signaling and incidental activities (Plaintiffs’ Exhibit 16). The controversy then became more heated, and this litigation followed.

Additional facts will be referred to, when deemed pertinent, during analysis of the legal issues. Further background information is available in the Stipulation filed by the parties. Document 9. Although the court disagrees with some of TWA’s basic legal contentions, few of its proposed findings of fact are in significant controversy.

“MAJOR DISPUTE” ANALYSIS

The court must first determine whether the powerback litigation involves a “major dispute,” a “minor dispute,” or both. Although injunctive relief may flow from either determination, and even from TWA’s current offer to delay the powerback furloughs, the characterization has practical significance. If there is simply a “minor dispute,” protection of mechanics from furloughs will be dependent on the processing of arbitration, which TWA suggests should be promptly scheduled. If the powerback controversy is a “major dispute,” the parties will be required to maintain the status quo during bargaining, mediation, and exhaustion of the processes of the Railway Labor Act, 45 U.S.C. § 156.

Very little discussion is needed to determine that there is at least a minor dispute, involving two interpretations of the 1983 collective bargaining agreement. The unions argue, quite plausibly, that since the agreement allocates to mechanics all work that has been previously characterized as mechanics’ work and since mechanics have for many years performed all receipt and dispatch ground work at mechanic-staffed stations, these receipt and dispatch activities are exclusively mechanics’ work at all stations where mechanics are on duty. They argue, somewhat less literally, that “towing and pushout” work means all receipt and dispatch activities, and has been so understood since the parties adopted the language in the early 1970s as a short-hand reference to the activities performed by mechanics in connection with the arrival and departure of aircraft. TWA argues, also with some plausibility, that the management rights clause allows it to institute powerback operations and to assign ramp servicemen to signaling and other associated ground activities because such operations are new and the supporting activities are unassigned by the contract.

Once the court has found arguable questions for arbitration (a minor dispute) it may be directed, by at least one Eighth Circuit case, to rule summarily that there can be no concurrent major dispute. United Transportation Union v. Burlington Northern, Inc., 458 F.2d 354, 356 (8th Cir. 1972). Chief Judge Matthes wrote in that case that a “hybrid approach cannot be sustained. The dispute is either a § 3 minor dispute, or a § 6 major dispute.” The citation for this statement was Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945), where the Supreme Court defined the major-minor distinction.

The court concludes, however, that it is bound by another Supreme Court case, the lesson from which is dispositive — Detroit & Toledo Shore Line R. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). The Shore Line case, like the case at bar, involved unilateral action by a carrier during negotiations. The carrier contended it could take the action because it was not forbidden by contract. The Court, speaking through Justice Black, ruled against the carrier, saying the “status quo provisions” of the Railway Labor Act are properly invoked “to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” 396 U.S. at 153, 90 S.Ct. at 301. The Shore Line case involved a major dispute but no minor dispute (because breach of contract was not claimed), but it seems obvious that if Section 6 is available when a carrier takes contractually permitted action at the wrong time (during negotiations) it would also be available when the carrier’s action is both untimely and arguably violative of a contract.

While the Shore Line case has not been used in the Eighth Circuit in the manner here suggested, the few precedents in the circuit which cite Shore Line are not inconsistent with the result here reached. A Ninth Circuit decision expressly states that a Section 6 status quo injunction is required when one of the parties uses self-help to effect a unilateral change in labor conditions during a negotiating period even though, “standing alone,” the issue might be characterized as a minor dispute involving contract interpretation. O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1148 (9th Cir.1977).

While the possible existence of a breach of contract does not negate the existence of a major dispute, entitlement to Section 6 relief preserving the status quo does depend on whether the challenged action or threat of action concerns matters that are “involved in or related to” the negotiations. 396 U.S. at 153, 90 S.Ct. at 301. A critical issue, therefore, as TWA seems to concede, is whether the subjects of negotiation were “so closely related” to the changes in practice that the status quo must be preserved in order to vindicate the statutory protection of the negotiating process. Baker v. United Transportation Union, 455 F.2d 149, 155 n. 13 (3rd Cir. 1971). See also Reed v. National Air Lines, Inc., 524 F.2d 456, 459 (5th Cir. 1975).

It seems clear that the powerback furlough program is indeed closely related to the subjects in negotiation. TWA did not, it is true, seek a contract modification expressly dealing with the powerback practice. That would have been inconsistent with its reading of the 1983 contract. But TWA plainly seeks agreement that “receipt and dispatch” is not reserved for mechanics, whether by new contract language or by an agreed interpretation of the present language. It does seek a change in the contract language, transferring towing and pushouts to ramp servicemen. If this were achieved, it is difficult to imagine a principled argument for retention of mechanics in other apparently more routine “receipt and dispatch” work. Displacement of mechanics in the operation of vehicles would hardly be consistent with using mechanics for signaling and other ground operations. Moreover, the interrelatedness of the various dispatch activities was acknowledged, as a matter of tactics, in TWA’s letter of October 23, 1984.

Most significantly, TWA’s unilateral adoption of powerback procedures at mechanic-staffed stations with ramp servicemen performing attendant ground functions gives the company leverage in negotiation in its efforts to have the unions agree to the pushout contract modification. By asserting a right to employ powerback and thereby take receipt and dispatch work away from the mechanics, the company greatly weakens the unions’ bargaining position on the pushout issue. If the unions maintain their insistence that pushout remain exclusively a mechanic’s function (as it has been in every IAM-TWA agreement since 1970), TWA can point to the power-back changes as an alternative means to reassign a significant portion of receipt and dispatch work to ramp servicemen. Implicit in the unilateral imposition of powerback is the asserted authority to get indirectly what TWA desired to achieve directly through the negotiations — to take job tasks away from the mechanics. TWA’s actions have the effect of telling the plaintiffs — we can displace mechanics by using power-backing for certain types of aircraft so it is futile for you to oppose the pushout contract change. It is precisely this kind of change in working conditions and assignments during the negotiation period that violates the letter and spirit of the Act’s status quo provisions. The leverage that the company would achieve in the labor negotiations by adopting its powerback dispatch option demonstrates the very close relationship between the pushout and powerback issues.

There is little doubt that in the present case, unlike the situation presented in International Federation of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155 (8th Cir.1981), the airline is altering an established practice and custom at mechanic-staffed stations relating to the use of mechanics as ground crews in dispatch operations. Furthermore, contrary to the facts presented in the IFFA case, it is my finding here that the changes pertaining to powerback are closely linked to the parties’ contract negotiations.

On the other hand, the change in “walk-around” and “logbook check” assignments seems clearly unrelated to the “receipt and dispatch” controversy or to any other subject of negotiation. The possible furlough of two mechanics in the TWA system does not rise to the level of a “major dispute,” using the “pragmatic” approach recommended by the unions and referred to in some of the decisions. Local 553, Transport Workers Union v. Eastern Airlines, Inc., 695 F.2d 668, 673-4, 676 n. 8 (2d Cir.1982); Air Line Pilots Ass’n. v. TWA, 713 F.2d 940, 948 (2d Cir.1983), appeal pending. If there is a violation of contract obligations, however, the Railway Labor Act offers relief through minor dispute resolution.

The court therefore characterizes the powerback dispute as a major dispute and the walk-around and logbook check disputes as minor.

Plaintiffs are not entitled to a status quo injunction, however, unless they are seeking to preserve the status quo. TWA contends the status quo should be ascertained from the July, 1983, letter, advising that powerback operations would be expanding through the system. There is no evidence, however, that powerback operations were in fact being continuously phased in through the entire period from July, 1983, to the date of the notice in November, 1984. On the contrary, all indications are that TWA had “frozen” its powerback activity, and a change of practice did not begin at stations where mechanics were employed until December, 1984. The period of inactivity seems to have included all of 1984, and may have begun in 1983. During a portion of the period TWA seems to have been motivated by the hope that agreement could be reached with the unions. The lengthy pause in unilateral action was consistent with the negotiating practices favored by the Railway Labor Act, and solidifies the status quo that is mandated by Section 6.

Whether or not TWA now has good cause for impatience, the unions are entitled to a court order requiring maintenance of the status quo with respect to power-back work reassignments and furloughs.

“MINOR DISPUTE” ANALYSIS

The court acknowledges that the lesson it draws from the Shore Line case seems not to have been previously recognized in this circuit, and there is language in some of the cases, particularly Burlington Northern and Northwest Airlines, that arguably cuts against the ruling that the powerback dispute is a major one, requiring Section 6 relief. If the powerback furlough dispute were characterized as a minor dispute, because there is a contract dispute as well as a dispute arising from negotiations, the court would be required to examine the equities before granting relief staying pertinent furloughs pending arbitration. The only equitable defense that requires consideration is the claim that legal remedies are adequate. The court concludes, however, that a sufficient showing of irreparable harm has been made, on behalf of the mechanics represented by plaintiffs who would be displaced by reassigned ground crew work during power-backing, so that relief should be granted even if the appellate court concludes the dispute is a minor one.

At the suggestion of the court, the parties have briefed the applicability of the Supreme Court’s decision in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) to the injunctive issues in this case. This court has previously found itself restricted by the Sampson case. E.g., Nelson v. Baldridge, 578 F.Supp. 320 (W.D.Mo.1984). At least two federal decisions apply Sampson to preliminary injunction analysis in Railway Labor Act cases. Local 553, TWU v. Eastern Air Lines, Inc., 695 F.2d 668, 677-8 (2d Cir. 1982); IBFO v. Consolidated Rail Corp., 560 F.Supp. 169 (S.D.Ohio 1982) (Duncan, J.). Judge Duncan in turn relies upon an unreported ruling by Judge Rogers in the District of Kansas (Topeka), as well as Sampson, in denying preliminary relief, surmising that the rights of terminated workers will be adequately redressed by an order for reinstatement and back pay in arbitration. While acknowledging that “the question is close”, Judge Newman’s opinion in Local 553 affirms a finding of irreparable harm, so as to justify a preliminary injunction pending further negotiations in a “major dispute”.

It may be technically ruled that none of the above cases is applicable to the analysis of irreparable harm in the present case, where the case has reached finality and all evidence has been presented. Reinstatement of employees and preservation of group job rights is commonly granted at the final stage of a proceeding in which terminations have been ruled unlawful. If the powerback controversy were to be submitted to arbitration, however, the protective order here requested will serve the same function as a preliminary injunction, and the court will therefore view the proof of inadequacy of legal remedies somewhat more critically than in the normal permanent injunction case.

Allowing TWA to proceed with furloughs will seriously impact on the lives of 180 to 225 employees who will either be furloughed or “bumped” by furloughed employees. The affected employees cannot now be readily identified. The proof satisfies the court, however, that there will be serious disruption of family life among some of the employees, a significant number of residential relocations to save job rights, family separations, forced sale of homes with unpredictable financial losses probably not compensable in arbitration, and great difficulty in identifying and evaluating the multiple losses incurred. Labor unrest will be invited, contrary to the purposes of the Railway Labor Act, and the unions will suffer some loss of credibility during a critical negotiating period.

The irreparable losses may be compared with those held to justify relief, despite Sampson, in an Eighth Circuit case. Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 712-3 (8th Cir.1979) (injunctive relief authorized pending administrative review of removal of Superintendent of an Indian agency). In the labor context, multiple employee losses through default of some mortgages and lapse of medical insurance have been held to justify relief by preliminary injunction. Truck Drivers, Oil Drivers, etc., Local 705 v. Almarc Manufacturing, Inc., 553 F.Supp. 1170 (N.D.Ill. 1982); Gonzalez v. Chasen, 506 F.Supp. 990, 997-999 (D.P.R.1980); American Federation of Government Employees, Local 1858 v. Callaway, 398 F.Supp. 176, 186, 193-4 (N.D.Ala.1975). See also Whelan v. Colgan, 602 F.2d 1060, 1062 (2d Cir.1979) (loss of medical coverage during litigation “obviously raised the spectre of irreparable injury”); Local Lodge No. 1266, IAM v. Panoramic Corp., 668 F.2d 276, 286-7 (7th Cir.1981) (preliminary injunction against employee displacement by sale of business). It is clear that in a meritorious labor controversy the courts often grant preliminary injunctive relief in order to avoid the potential later problems of “unscrambling eggs”.

Insofar as Judge Duncan’s ruling and the unreported ruling of Judge Rogers may be to the contrary, I decline to follow them; it is believed, however, that those cases may simply exemplify instances of insufficient proof and possible failure to emphasize the special problems arising when substantial numbers of employees are affected. In both eases, moreover, the union was seeking mandatory rather than preventive relief in that the employees had already been laid off. Relief is less disruptive and more often granted when it is possible to freeze a status quo.

JUDGMENT

The Clerk will enter judgment in favor of plaintiffs and against defendant on Count I and in favor of defendant on Count II of the complaint. Relief is denied on Count III as being unnecessary except in the event of a reversal. Defendant is enjoined from furloughing mechanics in order to substitute ramp servicemen as ground crews during powerbaek departures, and is further enjoined from continuing to reassign such work from mechanics to ramp servicemen, where such reassignments have been made or would otherwise be made pursuant to the notice given November 30, 1984. Jurisdiction is retained to modify or clarify this Order.

      . "All matters not covered by this Agreement or the Railway Labor Act as amended, shall remain exclusively and without limitation within the prerogative of Management.”

      . Of TWA’s 63 domestic locations, only 25 are staffed with IAM mechanics. Twenty-nine stations have neither mechanics nor ramp servicemen. Stipulation, paragraph 10.

      . The number affected could be about 225, using the estimate of 75 powerback furloughs, as contained in TWA’s proposed findings of fact, paragraphs 61-62.

      . A mechanic walk-around consists of "a check of the aircraft’s exterior to assure that access doors are closed, and to look for any obvious damage to the aircraft, its tires or its control services." Stipulation, paragraph 23. A mechanic log book review involves the reviewing of maintenance records concerning work done or required to be doné on a particular aircraft.

      . The hearsay objection was waived, except for "double hearsay." (Tr. I 98). Neither participant in the conversation testified. Frank Score, President-General Chairman of District Lodge 142, testified that had he received the July 8, 1983 letter, he "would not have taken issue with the letter had it dealt with locations where mechanics were not staffed to utilize other personnel.” (Tr. I 100). The immediate change announced in the letter was not threatening to IAM mechanics but the express intention to expand the powerback procedure to mechanic-staffed stations (with ramp servicemen performing the attendant ground functions) should have been of some concern to the unions. Score’s testimony suggests a plausible reason why the July 8, 1983 notice was not opposed more vigorously, as by a written complaint — it was perhaps not considered to materially infringe the mechanics’ rights because of its limited immediate effect and indefiniteness as to future intent.

      . TWA’s proposed findings of fact do include some unnecessary characterizations of testimony, argumentative phrasing and the like, but the controversy is essentially legal rather than factual.

      . It may be desirable to distinguish another Eighth Circuit precedent, Air Lines Pilot Ass'n, International v. Northwest Airlines, Inc., 444 F.Supp. 838, 840 (D.Minn.1977), aff'd, 570 F.2d 257 (8th Cir.1978), where it was ruled that a party cannot bootstrap itself from a minor dispute into a major dispute by offering to negotiate. See also Air Cargo, Inc. v. Local Union 851, 733 F.2d 241, 247 n. 6 (2d Cir.1984). In the case at bar, both parties have sent Section 6 negotiating notices and the previous contract has expired, therefore requiring renegotiation. The court is somewhat troubled, however, by Chief Judge Devitt’s language suggesting that the "analytical framework” remains the same, whether or not the parties have entered into a negotiating period. The statute and the Shore Line case make it clear that special protection for the status quo exists during a negotiating period, regardless of whether there may be a concurrent dispute over the interpretation of a contract. Moreover, unlike the situation in Northwest Airlines, the crisis was initiated here by a deadlock in bargaining over new contract language concerning "pushouts” rather than by an interpretation dispute that led to a bargaining notice.

      . By citing the O’Donnell ruling for the proposition that a contract dispute does not negate the existence of a major dispute, if unilateral action is threatened during a negotiating period, the court does not suggest agreement with the O’Donnell court that resolution of the contract dispute by the Adjustment Board must proceed dwing negotiations, and will authorize modification in the Section 6 injunction. Such a procedure, though possibly desirable as a matter of policy, does not seem to me to be contemplated by Section 6, as interpreted in Shore Line. In Shore Line the railroad had obtained a Board of Adjustment ruling that the collective agreement did not prohibit it from establishing outlying assignments (396 U.S. at 145-6, 90 S.Ct. at 296-97), yet the Supreme Court held that making such assignments was contrary to the status quo requirements of Section 6 because the assignments had become a subject for negotiation. In this sense the court agrees with the comment by the Eighth Circuit in Burlington Northern that the courts should not treat a controversy as a "hybrid”. 458 F.2d at 356.

      . The court finds the proof insufficient to conclude that the modified work assignments relating to walk-around inspections and logbook checks will result in irreparable harm.

      . Defendant picks up and elaborates on a comment by the court during the hearing that judicial remedies should not reward a party for threatened violence or illegality. The Railway Labor Act, however, is designed, in part, to create conditions alleviating unrest; the statute therefore legitimates the issues mentioned by plaintiffs. The court further assumes good faith and law-abiding intent by plaintiffs’ officials.

      . The court realizes, of course, that TWA contends that a freezing of excessive costs is inherent in an injunction against furloughs. The high priority given to labor peace in the transportation industry may be criticized as a matter of policy, particularly during a period of deregulation, increased competition and less public reliance on the services of a single carrier. The action taken by the court is, however, deemed to be consistent with the objectives of the Railway Labor Act.


author: WHITE, District Judge.

text:
    Nathaniel LITTLE, Plaintiff, v. FEDERAL RESERVE BANK OF CLEVELAND, et al., Defendants.
    No. C84-0997.
    United States District Court, N.D. Ohio, E.D.
    Jan. 30, 1985.

      Alan Belkin, Shapiro, Turoff & Gisser, Cleveland, Ohio, for plaintiff.
    John B. Lewis, James A. Smith, Steven J. Kurdziel, Squire, Sanders & Dempsey, Lee S. Adams, General Counsel, FRB of Cleveland, Cleveland, Ohio, for defendants.
   MEMORANDUM AND ORDER

WHITE, District Judge.

The plaintiff was employed as a guard at the Federal Reserve Bank of Cleveland. On March 16, 1984 he was notified that his position was terminated. This action was commenced under 5 U.S.C. §§ 702 and 704 which provides for judicial review for a person adversely affected or aggrieved by government agency action. Count I of the Amended Complaint alleges that plaintiff’s termination constituted an adverse action which was taken without complying with the necessary procedure set forth in 5 U.S.C. § 7511. Therefore his termination is contrary to law and void. Count II of the Amended Complaint contains the allegation that plaintiff was deprived of his employment without due process under the Fifth Amendment to the United States Constitution. Plaintiff also alleges in Count III of the Amended Complaint that the Federal Reserve Bank of Cleveland maintains a policy of progressive discipline covering its employees. The Federal Reserve Bank of Cleveland allegedly failed and refused to apply the terms and provisions of its policy to plaintiff. In his fourth count plaintiff asserts that the defendants conspired to improperly, unlawfully, and unconstitutionally deprive him of his job. His termination was the culmination of a pattern and practice of harassment undertaken by the defendant’s willfully, wantonly, maliciously and in reckless disregard of plaintiff’s constitutional rights. Plaintiff demands compensatory damages and reinstatement to his job with full seniority, back pay and benefits. The defendants, sued in their official and individual capacities are, besides the Federal Reserve Bank, Karen Horn, President, Lester Selby, Vice President and Secretary, Burton Shutack, Assistant Vice President, and Kenneth Kennard, Manager of the Protection Department. The defendants have filed a joint motion for summary judgment on all of plaintiff’s claims.

COUNT I

Count I of the Amendment Complaint contains the allegation that plaintiff as a federal employee was denied job protection pursuant to 5 U.S.C. § 7511 et seq. This subsection provides various procedural protections against adverse action such as 30 day written notice of the proposed adverse action, a written statement of the specific reasons for the adverse action, an opportunity to respond, and the right to be represented by counsel.

Federal Reserve Bank employees are governed by section four fifth of the Federal Reserve Act of 1913, 12 U.S.C. § 341 fifth which provides in part:

“[A] Federal Reserve Bank ... shall have power—
Fifth. To appoint by its board of directors a president, vice presidents, and such officers and employees as are not otherwise provided for in this Act, to define their duties, require bonds for them and fix the penalty thereof, and to dismiss at pleasure such officers and employees.”

This statute has been held to preclude the Federal Reserve Bank from having to follow procedural requirements when terminating an employee. Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093 (9th Cir.1981). Bollow was employed by the Federal Reserve Bank of San Francisco as an attorney. He was involved in an altercation with a secretary during which he allegedly shouted profanity and used abusive language. His dismissal followed. An action was filed alleging breach of contract, constitutional, and tort claims against the bank. The Court concluded that 12 U.S.C. § 341, fifth precluded process or tenure rights to a federal reserve bank employee. In Obradovich v. Federal Reserve Bank of New York, 569 F.Supp. 785 (S.D.N.Y.1983), the Court noted that Congress gave the Federal Reserve banks the authority to appoint employees without regard to civil service requirements and to dismiss all employees at pleasure. Id. at fn. 17.

COUNT II

In Count II plaintiff alleges that he was deprived of his right to employment without due process of law. Due process of law requires that reasons be given for discharge and that there be given an opportunity for a fair hearing on the charges against him.

A person may have a property interest in government employment if an entitlement to the benefit exists. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). An entitlement is created by rules or understanding derived from an independent source such as statutes, regulations, or express or implied contracts. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), Bollow v. Federal Reserve Bank of San Francisco, supra. Because of 12 U.S.C. § 341 Fifth allowing dismissal at pleasure, plaintiff cannot claim that he was deprived of an entitlement to continued employment. Obradovich v. Federal Reserve Bank of New York, supra.

Under the Fifth and Fourteenth Amendments one has the right to work and earn a living. When the government dismisses a person for reasons that might seriously damage his standing in the community he is entitled to notice and a hearing to clear his name. Regents v. Roth, supra, Bollow v. Federal Reserve Bank of San Francisco, supra. However, in order to amount to a constitutional deprivation the reasons for dismissal must denigrate the individual so severely that he cannot find other employment. Board of Regents v. Roth, supra. Dismissal on charges reflecting one’s good name, reputation, honor and integrity may infringe on liberty interests. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). In other words the charges must involve dishonesty or immorality. Bollow v. Federal Reserve Bank of San Francisco, supra. A dismissal for reasons of incompetence and inability to get along with co-workers does not amount to infringement of liberty interests. There are no allegations that the Bank’s reasons for discharging plaintiff were publicly disclosed. The notice of termination stated no reason for plaintiff’s discharge. “Unpublicized accusations do not infringe constitutional liberty interests because, by definition, they cannot harm good name, reputation, honor or integrity.” Bollow v. Federal Reserve Bank of San Francisco at 1101 citing Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). According to plaintiffs deposition he was terminated for the inability to get along with others and for having a second job contrary to rules of employment. He also was discovered carrying a gun on his second job as a security guard contrary to rules. In his affidavit, plaintiff states his reasons for discharge were because of threats of violence that he made against co-employees. He also stated he was refused employment because of his termination. But he does not assert that the company that refused to hire him knew the reasons for his prior termination. Dismissal for inability to get along with co-workers or failure to obey rules does not infringe on liberty interests. For this reason, the fact that reasons for discharge were not publicized and lack of allegations in the amended complaint requires dismissal of this claim.

COUNT III

The Federal Reserve Bank of Cleveland had a written policy of progressive discipline. Plaintiff was terminated without imposition of lesser forms of discipline. It is alleged plaintiff is entitled to the benefits inferred by the disciplinary policy.

The existence of 12 U.S.C. § 341, Fifth also precludes the claim under Count III. Because of this provision, requiring the Bank to adhere to this disciplinary policy interferes with its power to dismiss an employee at pleasure. Armano v. Federal Reserve Bank of Boston, 468 F.Supp. 674 (D.Mass.1979). In Armano v. Federal Reserve Bank of Boston, plaintiff alleged he was terminated in contravention of personnel policies and practices which established an employment contract. Judgment on the pleadings was granted. This claim is similar to plaintiff’s claim in the case at bar. Any contract based on the Bank’s personnel rules exceeds the Bank’s authority and is unenforceable. Obradovich v. F.R.B. of New York, supra.

Plaintiff asserts in his brief in opposition to the motion for summary judgment that his termination without following the procedures under § 7511 denied him equal protection of the law. Certain employees are denied the protection of 5 U.S.C. § 7511 et seq. A list of excepted positions is found at 5 C.F.R. §§ 213.3101 et seq. The position of security guard is not on this list. Security guards at other federal agencies cannot be fired at will. A security guard position is similar at every government agency. Therefore Federal Reserve Bank guards are improperly treated differently than other similarly situated federal employees. There is no valid legislative goal which could justify withholding of civil service protection from Federal Reserve Bank guards.

The Fifth Amendment does not contain an equal protection clause. This is implanted in the Fourteenth Amendment which applies only to state action. However the Fifth Amendment does forbid discrimination that is so unjustifiable as to be violative of due process. Therefore if a classification is invalid under the Fourteenth Amendment equal protection clause it is also inconsistent with the due process clause of the Fifth Amendment. Johnson v. Robison, 415 U.S. 361, fn. 4, 94 S.Ct. 1160, fn. 4, 39 L.Ed.2d 389 (1974).

The impropriety of the separate classification for Federal Reserve Bank guards must be determined by the rational basis test. If the distinctions made by the classification have some relevance to the purpose for which the classification is made then there is said to be a rational basis for the classification. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974), Darks v. City of Cincinnati, 745 F.2d 1040 (6th Cir.1984), Johnson v. Smith, 696 F.2d 1334 (11th Cir.1983).

If Federal Reserve Bank guards are not similarly situated to security guards employed at other federal agencies there is no equal protection problem. But if the guards are similarly situated a rational reason for the difference in treatment must exist. Johnson v. Smith, supra.

The Federal Reserve Bank was intended by Congress to be an independent institution.

“It is proposed that the Government shall retain a sufficient power over the reserve banks to enable it to exercise a directing authority when necessary to do so, but that it shall in no way attempt to carry on through its own mechanism the routine operations of banking which require detailed knowledge of local and individual credit and which determine the actual use of the funds of the community in any given instance. In other words, the reserve bank plan retains to the Government power over the exercise of the broader banking functions, while it leaves to individuals and privately owned institutions the actual direction of routine.” H.R. No. 69, 63d Cong. 1st Sess., 18-19 (1913).

The Court in Armano v. Federal Reserve Bank of Boston, 468 F.Supp. at 676 found that “Congress clearly sought to protect Federal reserve banks from unnecessary restrictions in carrying out their financial responsibilities.”

Plaintiff did not raise the equal protection issue in his original or amended complaint. He has not alleged any facts which would negate the existence of rational congressional purpose.

Accordingly, defendants’ motion for summary judgment is GRANTED. The action is DISMISSED.

IT IS SO ORDERED.