August Fuller et al., Appellants, v. Highway Truck Drivers and Helpers Local 107, an Unincorporated Association, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Hemingway Transport, Inc. and Novick Transfer Co., Inc, 428 F.2d 503 (3d Cir. 1970)

The plaintiffs-appellants at all relevant times were and are members of Highway Truck Drivers and Helpers Local 107 and were employed as truck drivers by Novick Transfer Co., Inc., an interstate carrier, at its Philadelphia terminal. Novick merged with Hemingway Transport, Inc., another interstate carrier, which became the surviving company. At the time of the merger, Hemingway, Novick, and Local 107, the exclusive bargaining agent for the Philadelphia terminal employees of both carriers, were parties to a multi-employer, multi-union collective bargaining agreement. As soon as the merger was completed and the plaintiffs became employees of Hemingway at its Philadelphia terminal, the issue was presented whether they should retain their Novick seniority dates or be placed below the original Hemingway drivers on the combined seniority list. The process sought by the appellants is called "dovetailing" while that urged by the defendant-appellee, Local 107, and by the original Hemingway drivers is described as "foot-of-the-list".¹ 

The suit at bar is one for damages and injunctive relief under Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185. The issue presented is whether Local 107 breached its duty of fair representation by the manner in which it participated in the resolution of the seniority dispute. The appellants applied for a preliminary injunction which was denied them by the District Court, 228 F. Supp. 287 (E.D. Pa. 1964). The case then came on for hearing for a permanent injunction and for damages, in all material respects on the record which was before the district court on the application for a preliminary injunction. The appellants were again denied relief and the appeal at bar followed.

The case has a complicated history which we set out in some detail to the end that the dispute between the parties may be plain.

The District Court made, among others, the following findings of fact:

"8. Both the Hemingway drivers and the Novick drivers took the seniority dispute to Local 107. The business agent of Local 107 who had the responsibility of representing both groups of drivers was Joseph Westenberg, to whom both groups of drivers turned.

"9. The initial meeting between the stewards from Hemingway and Novick and agent Westenberg was held on December 27, 1963, at the office of the Union. The Novick drivers were represented by their steward, Joseph Morris, and the Hemingway drivers by their steward, Joseph Mautz. At that meeting, agent Westenberg decided that the two seniority lists would be separately maintained until the dispute over seniority was resolved.

"10. On January 10, 1964, a second meeting was held at Local 107's offices. Present at this meeting were Westenberg, two other officers of the union and an attorney representing the union, Hemingway's district manager, three stewards from Hemingway (including Mautz) and two stewards from Novick (including Morris).

"11. At this meeting, Hemingway's district manager stated that Novick had some outstanding unpaid bills but that it was not insolvent.²  Morris took a position in favor of dovetailing the two seniority lists, and the Hemingway stewards opposed him. Westenberg then suggested calling the Teamster International Headquarters in Washington, D. C., for their recommendation on the dispute. Westenberg spoke to James Harding, special representative of the General President of the International, James Hoffa. Westenberg told the parties then present that the International favored dovetailing the two lists. Westenberg then stated that the Hemingway stewards had the right to file a grievance objecting to the International's proposed solution, and that both he and Al Berman, another business agent of Local 107, would sign the grievance.

"12. On January 14 or 15, agent Westenberg and Hemingway steward Mautz made a trip to Teamster Headquarters in Washington, D. C. Westenberg and Mautz visited James Harding, the same International representative who advised Westenberg by telephone on January 10 that the International favored dovetailing the Novick drivers. Mautz presented the Hemingway drivers' point of view to Harding in the presence of Westenberg.

"13. Westenberg did not tell any of the former Novick drivers that he was making this trip to Washington. The former Novick drivers learned about the trip on or about February 3, 1964, after the Joint Area Committee decision.

"14. The grievance procedure under the Master Agreement provides both for a Joint Local Committee and for a Joint Area Committee, each composed of equal union and management representation. The Joint Local Committee was omitted in the processing of this seniority dispute.

"15. The Joint Area Committee is composed of representatives of the employer and of the six unions which are parties to the Master Agreement. The rules of the Joint Area Committee provide that no representative of the local union or the employer involved in the dispute can act as a committee member. This rule was observed.

"16. The Joint Area Committee hearing to consider the seniority dispute was held in Philadelphia on January 20, 1964. William Fontaine, at that time a representative of the International, presided over the hearing.

"17. The hearing was attended by agent Westenberg, several Hemingway stewards, and the Novick steward, Morris.

"18. Morris received three days notice of the hearing from one of the Hemingway stewards, John O'Neill.

"19. Westenberg supported the position of the Hemingway drivers and requested the Committee to place the former Novick drivers at the foot of the combined seniority list. He referred to the prior merger of Brooks into Hemingway, in which the Brooks drivers had been placed at the foot of the list, and pointed out the unfairness of dovetail to the ex-Brooks drivers.

"20. Morris stated that the contract provisions provided for dovetail, and that though it was admittedly unfair in the case of ex-Brooks drivers, it was his opinion that dovetail was the proper resolution of the dispute.

"21. On January 20, the Joint Area Committee unanimously decided that the former Novick drivers should go to the foot of the combined seniority lists. The decision was implemented on January 21, 1964.

"22. The International Teamsters Union did not attempt to influence the outcome of the Joint Area Committee's decision, either on its own initiative or at the urging of representatives of Local 107.

"23. Local 107 did not influence the outcome of the Joint Area Committee's decision of January 20, 1964, through contacts with the International Teamsters, and did not contact members of the Joint Area Committee outside that hearing."

These findings are fully supported by the evidence.

The District Court³  dealt preliminarily with the issue of whether it had jurisdiction to review the seniority dispute in light in Article 7, Section 4(b), of the Master Agreement which provides: "Where the Joint Area Committee by majority vote settles a dispute, such decision shall be final and binding on both parties with no further appeal." The trial court decided correctly that it did have jurisdiction. The Supreme Court has held Area Committee decisions to be final and binding when the parties have designated them as their "chosen instrument [s]" for the definitive settlement of grievances. General Drivers, Warehousemen etc. Union v. Riss & Co., 372 U.S. 517, 519, 83 S. Ct. 789, 9 L. Ed. 2d 918 (1963). See also Bieski v. Eastern Automobile Forwarding Co., 396 F.2d 32, 37 (3 Cir. 1968). But it is also settled that an employee may look to the federal courts for relief under Section 301(a) of the Act in order to vindicate his individual rights under a collective bargaining agreement if he demonstrates that his union did not perform its duty toward him, fairly, honestly, and without discrimination. Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964); Bieski, supra.

On the merits, the appellants relied at trial upon two specific facts: (1) Westenberg's participation in the hearing before the Joint Area Committee, and (2) his trip to Washington with the Hemingway steward Mautz to discuss the seniority controversy with Harding, a representative of the International. As related above, Westenberg appeared before the Joint Area Committee and argued in favor of placing the appellants at the foot of the list.⁴  The district court, however, ruled that there was no inherent impropriety in Westenberg's partiality and found that his testimony and advocacy at the hearing did not constitute dishonesty or hostile discrimination. We need not decide these issues. As to the Westenberg trip to Washington, conducted without notice to the appellants, the district court noted correctly that there was no proof that the Washington visit with Harding affected in any way the final decision of the Joint Area Committee.

The appellants in this appeal argue in essence, to use their own words, that Westenberg made a "secret attempt to influence" the resolution of the seniority dispute in favor of the original Hemingway drivers and that this requires our setting aside the decision of the Joint Area Committee "without any need [on the part of the Novick drivers] to prove that the secret approach actually influenced the decision of the [Joint Area] Committee." (Emphasis in the original).⁵  In support of this position it is contended that the decision of the Joint Area Committee was an "arbitration" at least in the limited sense of being subject to the same standards as are imposed by Section 10 of the United States Arbitration Act, 9 U.S.C. § 10. In this connection appellants rely principally upon the case of Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968), which holds that an arbitrator has a duty to disclose to the parties any of his dealings that "might create an impression of possible bias."⁶  The analogy proposed by the appellants is that Westenberg's visit with Harding created such "an impression of possible bias" which gave rise to a duty of disclosure.

Even assuming arguendo that the Joint Area Committee was subject to the standards of the Arbitration Act, we conclude that the doctrine of Commonwealth Coatings is inapposite. Appellants' analogy contains a major flaw. In Commonwealth Coatings it was an arbitrator whose activities and relationships gave rise to the impression of bias, and as an arbitrator he was in a position to directly influence the decision by participating in the deliberations of the arbitrating panel and by casting his vote. Westenberg, by contrast, was not a member of the decision-making body.

Finally, we reiterate that there is no evidence whatever that Harding was influenced by Westenberg or that Harding in turn influenced or even attempted to influence the Joint Area Committee or any of its members.⁷  We cannot accept the proposition that the Westenberg-Harding meeting standing alone, undesirable as it may have been, so taints the decision of the Joint Area Committee that its decision must be set aside.

The judgment will be affirmed.

Judge VAN DUSEN concurs in the result.