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Alice Leach and Carmen Irons v. Pan American World Airways, Teamsters Local Union No. 769, 842 F.2d 285, 11th Cir. (1988)
Alice Leach and Carmen Irons v. Pan American World Airways, Teamsters Local Union No. 769, 842 F.2d 285, 11th Cir. (1988)
2d 285
128 L.R.R.M. (BNA) 2126, 56 USLW 2609,
108 Lab.Cas. P 10,485
FACTS
1
Plaintiffs Alice Leach and Carmen Irons are employees of Pan American
World Airways, Inc.; defendant Teamsters Local 769 represents them before
their employer. The two claim that the Department of Labor has declared them
After the System Board deadlocked over the claims of Leach and Irons, the
union presented Irons' claim to a neutral arbitrator. Leach asserts that she signed
an agreement with Pan American and Local 769 to allow her grievance to be
presented at the same hearing; at the hearing, however, Local 769 withdrew
Leach's claim when Pan American objected to its introduction. Leach contends
she should have been notified before Local 769 breached the agreement.
Irons lost her claim at arbitration. Leach never received a definitive answer as
to her grievance. Both women filed charges against Local 769 according to the
Teamsters' internal procedures. An internal board exonerated Local 769, and
the plaintiffs brought their claims to federal court, seeking to overturn the
arbitration award and to recover damages for Local 769's breach of its duty of
fair representation. The complaint named Pan American, Local 769, the
International Brotherhood of Teamsters, and the Georgia-Florida Conference of
Teamsters as defendants.
The present appeal poses the single and deceptively simple question of whether
Leach and Irons are entitled to a jury trial of their claim that the union breached
its duty to represent them fairly. The district court, 651 F.Supp. 713, found that
a controlling precedent in the former Fifth Circuit bound it to conclude that
plaintiffs were to receive a jury trial. See Cox v. C.H. Masland & Sons, Inc.,
607 F.2d 138 (5th Cir.1979). Suggesting that the Cox rationale had been
undercut, if not destroyed, the district court certified the question for
interlocutory appeal. We agree with the district court that recent Supreme Court
cases have undermined Cox, and, accordingly, we reverse.
Cox expressly concluded that a discharged employee could obtain a jury trial
for his claim that the union failed to represent him fairly. Cox, 607 F.2d at 143.
Because the Cox decision was issued by the Fifth Circuit prior to September of
1981, normally we would accept its precedential value in this circuit, absent an
Eleventh Circuit en banc decision to the contrary. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (5th Cir. Unit B Aug. 1981). At the same time, however,
according to both Eleventh and Fifth Circuit precedent this panel may not
The panel in Cox analyzed the question of whether to grant a jury trial by
applying the three-pronged test supplied by the Supreme Court in Ross v.
Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970).1 In Ross the
Supreme Court explained that a jury trial would be constitutionally mandatory
under the Seventh Amendment when the particular case was "legal" in nature;
the nature of the claim "is determined by considering, first, the pre-merger [of
law and equity] custom with reference to such questions; second, the remedy
sought; and, third, the practical abilities and limitations of juries." Ross, 396
U.S. at 538 n. 10, 90 S.Ct. at 738 n. 10. The Cox panel explained that suits
alleging a breach of the duty of fair representation resembled a common law
tort, an action triable to a jury prior to the merger of law and equity.
Furthermore, the panel determined that the action was one to enforce a
"statutory liability involving legal rights and remedies." Cox, 607 F.2d at 143.
Such actions have been accorded the right to a jury trial. Curtis v. Loether, 415
U.S. 189, 193-94, 94 S.Ct. 1005, 1007-08, 39 L.Ed.2d 260 (1974).
The Cox court summarily addressed the second two prongs of Ross, explaining
that the plaintiffs sought the traditional legal remedy of compensatory and
punitive damages, and that juries "could adequately" adjudge the merits of
disputes over the duty of fair representation. Cox, 607 F.2d at 143.
Since the panel decided Cox, two Supreme Court cases have eroded the
rationale on which the panel constructed its decision.2 In United Parcel Serv.,
Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the
Supreme Court explained:
9
Respondent
suggests Hines actions might also be characterized as actions upon a
statute, personal injury actions, or malpractice actions, all governed by a 3-year
limitations period in New York.... All of these characterizations suffer from the same
flaw as the effort to characterize the action as one for breach of contract: they
overlook the fact that an arbitration award stands between the employee and any
relief which may be awarded against the company.
10
11
11
A second Supreme Court decision toppled what remained of the Cox analysis.
In DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 103 S.Ct.
2281, 76 L.Ed.2d 476 (1983), the Court explained that the hybrid action at
issue here "has no close analogy in ordinary state law." DelCostello, 462 U.S.
at 165, 103 S.Ct. at 2291.4
12
Mitchell and DelCostello also have undermined the reasoning the Cox panel
used to assert that cases such as this one meet the second factor set forth in
Ross. Cox stated that in cases such as the one at issue here plaintiffs seek only
the traditional legal remedy of compensatory and punitive damages from the
defendant union. DelCostello explained, however, that the claim against the
union is "inextricably interdependent," DelCostello, 462 U.S. at 164-65, 103
S.Ct. at 2290-91 (quoting Mitchell, 451 U.S. at 66-67, 101 S.Ct. at 1565-1566
(Stewart, J., concurring in the judgment)), with the claim against the employer:
" '[t]o prevail against either the company or the Union, ... [employees-plaintiffs]
must not only show that their discharge was contrary to the contract but must
also carry the burden of demonstrating breach of duty by the Union.' " Mitchell,
451 U.S. at 66-67, 101 S.Ct. 1565-1566 (Stewart, J., concurring in the
judgment) (quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71,
96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976)). The Hines language is also
quoted in DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291.
13
Leach's and Irons' claim against the employer seeks vacation of the arbitration
award,5 a de novo hearing of the merits of plaintiffs' claims, and "fair and
adequate" equitable relief for the plaintiffs.6 None of the remedies sought by
plaintiffs constitutionally merits a jury trial. Now that the Supreme Court has
established that the remedies for that portion of plaintiffs' suit directed at the
employer are clearly equitable, and that the two parts of the claim are
"inextricably intertwined," we can no longer rely on Cox's conclusion that the
remedies sought by the plaintiffs against the union are legal ones.
14
Furthermore, the Supreme Court has limited the scope of damages awarded to
employees victorious in fair representation cases. Stressing that the purpose of
relief in these cases is "to make the injured employee whole," International
Bro. of Electrical Wkrs. v. Foust, 442 U.S. 42, 49, 99 S.Ct. 2121, 2126, 60
L.Ed.2d 698 (1979), is "essentially remedial," id. at 52, 99 S.Ct. at 2127, and is
governed by the "compensation principle," id. at 49, 99 S.Ct. at 2126, the Court
has refused to allow punitive damages against a union. Id. at 50-52, 99 S.Ct. at
2126-2128. While Leach and Irons sought punitive damages in their original
complaint, the district court correctly struck the request; the remedies
remaining to plaintiffs, then, are equitable, "make whole" ones.
15
As to Cox's determination that juries would be able to adequately deal with the
15
16
As to Cox's determination that juries would be able to adequately deal with the
issues at stake in breach of duty of fair representation cases, we note that at
least two courts, including this one, have questioned whether the third tenet of
Ross retains any vitality in light of the fact that the Supreme Court has several
times considered the right to a jury trial without analyzing or even mentioning
the third factor. Phillips v. Kaplus, 764 F.2d 807, 814 n. 6 (11th Cir.1985), cert.
denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986), In re U.S.
Financial Securities Litigation, 609 F.2d 411, 425-26 (9th Cir.1979), cert.
denied sub nom. Gant v. Union Bank, 446 U.S. 929, 100 S.Ct. 1866, 64
L.Ed.2d 281 (1980). In fact, the Supreme Court has recently explained that it
"has not used [the third factor] as an independent basis for extending the right
to a jury trial under the Seventh Amendment." Tull v. United States, --- U.S. ---, ---- n. 4, 107 S.Ct. 1831, 1835 n. 4, 95 L.Ed.2d 365 (1987).
Cox having been implicitly destroyed by recent Supreme Court cases, this
panel has no choice but to reconsider the question of whether plaintiffs have a
right to a jury trial when they sue a union for the breach of the duty of fair
representation.
DelCostello and Mitchell have not only undermined Cox; they have also
dictated the answer we must give to the question of whether plaintiffs
constitutionally deserve a jury trial in their suit against their union for the
alleged breach of its duty to represent them fairly.7
18
In DelCostello the Court determined that the inadequacy of state law analogies,
coupled with the overriding importance of national interests in federal labor
policy, permitted it to ignore state law and choose the federal law it believed
most appropriate. We reach a similar conclusion here. The need for uniformity
and predictability in federal labor policy, when combined with the ill fit of any
state law analogy for an action for breach of the duty of fair representation,
leads us to eschew any analogy other than one to an unfair labor practice
charge.8 While the Supreme Court has never held that an action against a union
for the breach of the duty of fair representation is an unfair labor practice, it has
observed that: "the family resemblance is undeniable." DelCostello, 462 U.S. at
170, 103 S.Ct. at 2293. This court has held specifically that a breach of the duty
of fair representation is an unfair labor practice. Local Union No. 12, United
Rubber, C., L., & P. Wkrs. v. N.L.R.B., 368 F.2d 12 (5th Cir.1966), cert.
denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967). See also Erkins v.
United Steelworkers of America, 723 F.2d 837, 839 (11th Cir.), cert. denied,
467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984). Statutorily, suits to
prevent unfair labor practices are not accorded a jury trial.9
19
While fair representation actions do not resemble any particular actions at either
law or equity, we note that from their inception they have embodied certain
traditional notions associated with equity jurisdiction. Equity has been defined
as "justice, that is, as ascertained by natural reason or ethical insight, but
independent of the formulated body of law." Black's Law Dictionary 634 (4th
Ed.1951). The action for the breach of the duty of fair representation actually
was implied by the Supreme Court from the statutory exclusivity of the
bargaining agent. The Court reasoned that the duty arose from a "fair
interpretation of the statutory language" and the "principle of general
application that the exercise of a granted power to act in behalf of others
involves the assumption toward them of a duty to exercise the power in their
interest and behalf." Steele, 323 U.S. at 202, 65 S.Ct. at 232. We conclude that
"the action involves rights and remedies of the sort traditionally enforced" in
equity. Pernell v. Southall Realty, 416 U.S. 363, 375, 94 S.Ct. 1723, 1729, 40
L.Ed.2d 198 (1974).
20
21
22
Cox having been invalidated, the district court opinion based on Cox is
23
REVERSED.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
**
Honorable Harold L. Murphy, U.S. District Judge for the Northern District of
Georgia, sitting by designation
Congress, should it so desire, could establish the right to a jury trial in postmerger cases based on congressional statutes. The appellees, however, do not
contend that Congress has attempted statutorily to grant the right to a jury.
Appellees concede that the action for breach of the duty of fair representation
was judicially created, see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65
S.Ct. 226, 89 L.Ed. 173 (1944), and has never been addressed specifically by
Congress
While both cases were decided under the Labor Management Relations Act, 29
U.S.C. Secs. 141-187, and Leach and Irons are suing under the Railway Labor
Act, 45 U.S.C. Secs. 151-188, for purposes of fair representation suits courts
have refused to distinguish the two acts. See, e.g., Ford Motor Co. v. Huffman,
345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Roscello v. Southwest
Airlines Co., 726 F.2d 217, 221 (5th Cir.1984)
As the Sixth Circuit has explained: "[p]erhaps the most vital part of the analysis
in Mitchell was the Court's recognition that Section 301 [29 U.S.C. Sec. 185]
claims are neither standard contract nor standard tort actions." Badon v.
General Motors Corp., 679 F.2d 93, 97 (6th Cir.1982)
In both DelCostello and Mitchell an employee sued his former employer for
wrongful termination and his union for breach of its duty to fairly represent
him. In Mitchell the Court analogized the action to one to vacate an arbitration
award, and applied New York's 90-day statute of limitations for such actions. In
DelCostello the Court considered two additional questions: what state statute of
limitations should govern the claim against the union (as opposed to the
employer), and whether or not to borrow a federal rather than a state statute of
limitations. The Court again refused to draw an analogy to an action for a
breach of contract, and additionally declined to analogize to either an action to
vacate an arbitration award or to an action for legal malpractice. The Court
concluded that in this situation no state law analogy adequately addressed the
unique concerns of federal labor law, and borrowed the statute found in the
National Labor Relations Act at 29 U.S.C. Sec. 160(b)
See Skidmore v. Consolidated Rail Corp., 619 F.2d 157 (2d Cir.1979), cert.
denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 488 (1980) (no right to a jury
trial in an action to vacate an arbitration award under the Railway Labor Act);
Northwest Airlines, Inc. v. Air Line Pilots Ass'n., 373 F.2d 136 (8th Cir.), cert.
denied, 389 U.S. 827, 88 S.Ct. 77, 19 L.Ed.2d 83 (1967) (same)
under the collective bargaining agreement, and their expenses...." R1-21-9, 10,
12
We realize that the Fifth Circuit has applied Cox since DelCostello and
Mitchell were decided. See Roscello v. Southwest Airlines Co., 726 F.2d 217
(5th Cir.1984). To the extent that that court found that Cox could not be
distinguished merely because it dealt with the National Labor Relations Act as
opposed to the Railway Labor Act, we agree with that decision. Roscello, 726
F.2d at 221. To whatever extent the Fifth Circuit upheld the remainder of Cox,
however, we disagree. The Fifth Circuit cited neither DelCostello nor Mitchell,
and did not reconsider the validity of Cox in light of those two cases. Given that
fact, we surmise that the decision did not address the issues raised by the
parties before this court
We also recognize that our conclusion differs from that reached by the D.C.
Circuit. See Quinn v. DiGiulian, 739 F.2d 637 (D.C.Cir.1984). The D.C. Circuit
insisted that DelCostello did not imply that duty of fair representation cases
were equitable ones. Noting that in recent analysis the Supreme Court has
emphasized prong two, the remedy sought, the court concluded DelCostello's
discrediting of all common law analogies could not alter the more significant
fact that "an action for damages for breach of the duty of fair representation,
like a damages action for housing discrimination, is an action to enforce a legal
right." Quinn, 739 F.2d at 646. As we explained above, we conclude that the
combination of the Mitchell and DelCostello cases invalidated previous
holdings that the remedy sought by these plaintiffs is legal rather than
equitable.
The D.C. Circuit correctly noted that Cox sought only damages from his former
employer and union. It concluded that it could not depart from the Cox rule
merely because a plaintiff sought equitable remedies as well as legal ones. See
Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956-57,
3 L.Ed.2d 988 (1959) (where both legal and equitable issues are present in a
single case, "only under the most imperative circumstances, ... can the right to a
jury trial of legal issues be lost through prior determination of equitable
claims.").
We disagree with the Quinn conclusion for two reasons. First, we believe the
federal policies at stake in labor law constitute the "imperative circumstances"
to which Beacon Theatres referred. Secondly and independently, the Supreme
Court has explained that monetary damages do not necessarily constitute a legal
remedy, Hartford Accident & Indemnity Co. v. Southern Pac. Co., 273 U.S.
207, 217-18, 47 S.Ct. 357, 359-60, 71 L.Ed. 612 (1927); we conclude that here,
where the damages are so intertwined with the accuracy of the arbitration
award, the plaintiffs seek an equitable remedy even where they do not
additionally demand vacation of the arbitration award. We note that punitive
damages, the legal remedy sought in Tull, may not be collected against a union
for a breach of the duty of fair representation. Foust, 442 U.S. at 49, 99 S.Ct. at
2126.
Finally, although as we have explained we do not find the distinction relevant,
we observe that this case differs from both Quinn and Cox because these
plaintiffs seek to vacate an arbitration award in the same action in which they
present their suit for breach of the duty of fair representation.
8
Such suits are tried first to the National Railroad Adjustment Board or a similar
body. Appeals may be had to a federal district court. 45 U.S.C. Sec. 153. See
also Skidmore, 619 F.2d 157 (no right to jury trial in an action attempting to
overturn arbitration awards made under the Railway Labor Act); Northwest
Airlines, 373 F.2d 136 (same). In another context the Supreme Court has
refused to provide two different rules, one for the suit against the employer and
one for the suit against the union. DelCostello, 462 U.S. at 169 n. 19, 103 S.Ct.
at 2293 n. 19
Our decision comports with West v. Conrail, --- U.S. ----, ----, 107 S.Ct. 1538,
1541, 95 L.Ed.2d 32 (1987), in which the Court explained that DelCostello had
merely supplied a rule where a gap in the statutory scheme existed; no
amendment of the Federal Rules of Civil Procedure was intended or resultant.
Our decision, likewise, extends only so far as to fill the interstices in the law.
10
See Mitchell, 451 U.S. at 67, 101 S.Ct. at 1566 ("a plaintiff must prevail upon
his unfair representation claim before he may even litigate the merits of his
Section 301 claim against the employer")