Francis Kizlinski and Michael G. Oliver, Plaintiffs-appellants, v. Rockwell International Corporation and International Union,united Automobile, Aerospace and Agriculturalimplement Workers of America (uaw),defendants-appellees, 74 F.3d 1249 (10th Cir. 1996)

ORDER AND JUDGMENT^* 

Appellants Francis Kizlinski and Michael Oliver appeal the district court's order granting summary judgment to Appellees Rockwell International and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Appellants were employees of Rockwell and members of International Union. They brought this action under Section 301 of the Labor

Management Relations Act, 29 U.S.C. 185, claiming that Rockwell breached the Collective Bargaining Agreement ("CBA") between Rockwell and International Union and that International Union breached its statutory duty of fair representation. The trial court, in granting summary judgment, found that there was no breach of the CBA. The court additionally determined that the Appellants failed to demonstrate damages occasioned by the alleged breach.

On appeal, Appellants argue that they did establish a breach of the CBA and resulting damages. Further, Appellants maintain that the district court improperly considered extrinsic evidence in its analysis of the CBA clause at issue. Finally, Appellants assert that their seniority rights were property rights that were improperly denied without procedural due process protection. We review a district court's conclusions of law, including its summary judgment determinations, de novo. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.).

Appellants are former structures mechanics at Rockwell on layoff. They were members of the collective bargaining unit represented by International Union. The CBA in effect between Rockwell and International Union contained a provision by which employees of Rockwell could volunteer to be laid off out of seniority order, which would otherwise be the method by which layoffs would occur. This provision, called an Inverse Seniority Layoff ("ISL"), thus made it possible for more senior employees to choose to be laid off prior to less senior employees. The provision required that ISL applications be filed two weeks prior to the scheduled layoff. It is asserted that this time provision was to allow Rockwell the necessary time to implement the layoff considering paperwork requirements and potential changes the ISL applications could have on the layoffs. It was established that this time frame was interpreted by both Rockwell and International Union as being required only if Rockwell needed the full two weeks to complete all the requisite paperwork for the layoffs.

Yandell, Lackey, Dennis, Teague and Gingerich ("Yandell Group") were structures mechanics at Rockwell's Tulsa plant. On April 2, 1993 Rockwell determined that it must lay off five structures mechanics from that facility, and accepted the Yandell Group's ISLs which had been submitted on March 22, March 23, March 29, and March 30. As had been the practice at various Rockwell facilities, including the Tulsa facility, the applications were accepted within the two-week period in light of the fact that Rockwell did not need the full two weeks to implement the layoff. On April 6, 1993 the Yandell Group applied for preferential reinstatement at Rockwell's McAlester facility, which was to hire five structures mechanics. They were hired on April 2, 1993. Appellants, who were also on the list at McAlester, were not hired. Prior to the Yandell Group's application, Appellants were numbers three and five on the seniority based preferential list; after the Yandell Group's application Appellants were numbers eight and ten.

Appellants maintain that the CBA was breached by Rockwell's acceptance of the Yandell Group's ISLs which were submitted within two weeks of the layoffs. Appellants contend that this violated their property rights in that it essentially enabled the Yandell Group to apply for the McAlester positions, two of which would have otherwise gone to the Appellants.

The CBA upon which the Appellants rely contains a provision by which the CBA's seniority provisions may be modified by Rockwell and International Union by mutual agreement. Paragraph 18(g) of Article XI of the CBA provides:

"Under unusual circumstances and after full discussion of the problem, exceptions to the provisions of this Article may be made by mutual agreement by the Personnel Director of the division involved and the President of the Local Union or their designated representatives."

Appellee's Appendix at 65. Our review of the record indicates that such an agreement was reached by Rockwell and International Union as to the two-week time frame provided by the CBA. As the district court noted in its factual determinations, immediately after the implementation of the ISL policy in 1981 employees volunteered for ISLs less than two weeks before the scheduled layoff. The district court further found that at these facilities "Rockwell and the Union agreed to interpret the two-week time period for ISL applications to only require ISL applications to be made more than two weeks before the layoff if Rockwell needed the two weeks to complete all of the necessary paperwork for the layoff." District Court Order at 4.

In specific regard to Rockwell's Tulsa facility, which was the facility at which the ISLs at issue were accepted, it is abundantly clear that such an agreement was reached. In April of 1989, after the Tulsa plant denied an untimely ISL application, an appeal by the affected employee to the International Union resulted in a reversal of that decision following a review of the contractual interpretation of the ISL application provision at other Rockwell plants. The Tulsa Rockwell personnel department agreed to this interpretation and since 1989 has accepted 49 ISL applications within two weeks of the scheduled layoffs.

We conclude that as provided by the CBA Rockwell and International Union have mutually agreed that ISLs may be accepted within the two weeks prior to the scheduled layoff if Rockwell does not need that time to effectively implement the layoff. Because Appellants are unable to demonstrate a breach of the CBA, their Section 301 claim fails. See Local No. 391 v. Terry, 494 U.S. 558, 564 (in order to prevail under Section 301 a plaintiff must prove both that the employer's actions violated the terms of the collective bargaining agreement and that the union breached its duty of fair representation). In light of this conclusion, we need not reach the question of whether Appellants demonstrated damages.

There is no merit to Appellants' insistence that their due process rights were unconstitutionally denied; clearly there is no state actor present. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (the Fourteenth Amendment is directed at the states and can be violated only by conduct that amounts to "state action"). We further find no error in the district court's analysis of the CBA.

For the foregoing reasons, the order of the district court is AFFIRMED.