Notice: Fourth Circuit I.o.p. 36.6 States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit, 908 F.2d 966 (4th Cir. 1989)

No. 89-2434.

United States Court of Appeals, Fourth Circuit.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Solomon Blatt, Jr., Senior District Judge. (CA No. 87-1683).

James Lee Bell, the Bell Law Firm, Columbia, South Carolina, argued for appellants.

Charles Preyer Roberts, III, Haynsworth, Baldwin, Johnson and Greaves, Greensboro, N.C., argued, for appellee.

D.S.C.

AFFIRMED.

Before MURNAGHAN and SPROUSE, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

SMITH, District Judge:

Plaintiffs brought suit under section 301 of the Labor Management Relations Act, as amended, 29 U.S.C. § 185, claiming that defendant breached the collective bargaining agreement by laying off the individual plaintiffs out of seniority. Plaintiffs further alleged that defendant acted arbitrarily and capriciously in making the layoff decisions. The case was tried without a jury in the district court for the District of South Carolina, after which the court entered judgment for the defendant. By order filed June 9, 1989, Judge Blatt held that the collective bargaining agreement between the International Brotherhood of Painters and Allied Trades, Local 1756 ("Union"), and E.I. du Pont de Nemours and Company ("du Pont") had not been breached because it clearly permitted du Pont to consider "suitability" of employees for remaining positions when it determined that a layoff was necessary. Because the court was persuaded that the procedures taken by du Pont to evaluate the qualifications of employees were reasonable, it also held that du Pont had acted in good faith in selecting the group of employees, which included the four individual plaintiffs, to be laid off. We affirm the decision of the district court.

The Union represents the paint craft employees at du Pont's Savannah River Plant in South Carolina. The collective bargaining agreement between du Pont and the Union in effect at the time of the layoffs at issue in this case was first negotiated in 1962 and subsequently revised in 1972. This agreement, entitled "Paint Craft--Layoff Seniority," provides in relevant part:

When a reduction of the number of Painters or Sign Painters is deemed necessary by the Company, the employee or employees to be laid off will be selected in accordance with the following:

1. Employees in the group to be affected will be reviewed by the Company to determine their suitability to fill the jobs that will remain. Suitability will take into consideration such factors as past performance, ability, specific skills required, safety attitude, etc.

2. If, in the judgment of the Company, suitability to fill the remaining jobs is relatively equal, then the order of layoff will be based on the employee's date of employment or transfer into the group involved. The last employee to enter the group by employment or transfer will be the first employee to be laid off.

In November 1986, du Pont determined that a layoff would be necessary. The Union does not challenge the need for the layoff. Paint Craft Superintendent Randy Whitt ("Whitt") met with Senior Employee Relations Superintendent Sam Thorpe ("Thorpe") to decide which employees should be laid off. They evaluated only those employees with less than five years seniority since their most recent hire dates because they felt that employees with earlier hire dates were generally qualified. Whitt and Thorpe determined that four skills would be required in the reduced work force: spray painting, sandblasting, trim work, and climbing structural steel at extended heights. Whitt and Thorpe relied, in part, on questionnaires periodically given to the paint craft employees in order to evaluate their skills. These questionnaires asked the employees to evaluate their abilities to perform approximately fifteen different skills. The bottom of the questionnaire specifically stated that " [e]mployees are advised that qualifications may be considered in layoffs." Joint App. at 81. By letters dated February 25, 1985, and May 28, 1985, du Pont did notify the Union that the questionnaires would be used by the company in determining suitability to fill jobs. However, the instant case was the first time du Pont had used the questionnaires in a layoff situation. The information obtained from the questionnaires was supplemented by Whitt's personal knowledge and observations of the employees.

Using this method, Whitt and Thorpe selected eight employees, including the four individual appellants, to be laid off for qualifications. Each of these employees indicated on their questionnaire an inability or deficiency to perform at least one of the critical skills. Appellants Marilinda Bush and Darrell Hughes responded that they could not do spray painting. Appellant Robby Smith stated that he could not perform trim work. And appellant Maxie Stevenson indicated that spray painting and sandblasting were both skills he lacked. Whitt's personal observations confirmed that each of these individuals did indeed lack skills in these areas.

Thorpe and Whitt met with the Union's agent to review their layoff decisions. The four individual appellants filed written grievances which were processed through du Pont's grievance procedures. Because no resolution of their grievances occurred, the Union and the individual appellants filed suit in the district court charging violations of the contract under section 301 of the Labor Management Relations Act, as amended, 29 U.S.C. § 185.

The district court felt bound by this court's decision in Kelly v. E.I. du Pont de Nemours, No. 86-2181 (4th Cir. Jan. 8, 1988). In Kelly, the Union and several individual appellants alleged that du Pont had breached the same provisions of the collective bargaining agreement involved in the instant case when it laid them off out of seniority on the basis of active formal reprimands contrary to the prior practices of the parties. Kelly, slip op. at 10-11. The district court in Kelly granted summary judgment for du Pont on the ground that the collective bargaining agreement permitted employees to be laid off out of seniority when they had active formal reprimands. Id. at 2. On appeal, this court concluded that while the "law of the shop" prevented du Pont from laying off an employee solely on the basis of a formal reprimand, the company could "still look behind the formal reprimand and consider the conduct that gave rise to it." Id. at 12. The court specifically stated:

The layoff seniority agreement expressly allows the employer to take into consideration factors such as "past performance, ability, specific skills required, safety attitude, etc." in determining the relative suitability of employees for the jobs that will remain. If the conduct that gave rise to the formal reprimand is also a manifestation of poor past performance, lack of attention to his job, lack of ability, lack of specific skills required, poor attendance, or an unsafe attitude, etc., the employer may properly take that conduct into account in determining an employee's relative suitability for the jobs that will remain.

Id.

As a threshold matter, it is clear from the agreement itself, see supra at 2, and this court's decision in Kelly, which case involved the same provisions of the collective bargaining agreement as are involved in the instant case, that du Pont did not breach the collective bargaining agreement simply because it used skill, ability, and past performance as the basis for laying off employees out of seniority. Appellants, however, characterize the questionnaires as a "new criteria ... to determine lay off ... in disregard of accepted past practice." Brief for Appellants at 8. According to appellants, du Pont has violated past practices in two ways. First, the company had never before used questionnaires in a layoff situation. And, second, du Pont traditionally has not laid off employees out of seniority, with the only exception to this policy being for those employees who exceeded a three (3) percent absenteeism rate during a specified time period.¹

Practices of the industry and the shop are part of a collective bargaining agreement. See Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960); Clinchfield Coal Co. v. District 28, United Mine Workers, 736 F.2d 998 (4th Cir. 1984) (Clinchfield II); Clinchfield Coal Co. v. District 28, United Mine Workers, 720 F.2d 1365, 1368 (4th Cir. 1983) (Clinchfield I); Norfolk Shipbuilding & Drydock Corp. v. Local No. 684, International Brotherhood of Boilermakers, 671 F.2d 797, 799-800 (4th Cir. 1982); Kelly, slip op. at 10 (cases all recognize that past practices may establish a "law of the shop" applicable in interpreting labor contracts). However, use of the questionnaires to determine suitability for the remaining jobs after a layoff under the collective bargaining agreement in this case does not violate any "law of the shop." Suitability, to include, inter alia, evaluation of ability and specific skills has long been an accepted criteria for determining which employees will remain on the job following a layoff under the agreement at issue in this case. See Kelly, slip op. at 3, 12; supra at 2-3. The questionnaires are simply a means by which du Pont can pinpoint the skills, or lack thereof, possessed by the members of its work force and thereby make the suitability determination, utilizing the specific factors delineated in the collective bargaining agreement. Like du Pont's use of reprimands in Kelly, the questionnaires provided a starting point from which Thorpe and Whitt could determine suitability for the jobs that remained after the layoff. Moreover, in addressing this same argument, the district court specifically noted that the Union was alerted twice to du Pont's intentions to rely on the questionnaires during layoffs. Also, each appellant received notice of the questionnaires' importance in a layoff situation because the questionnaires clearly state that qualifications may be considered in the event of a layoff.

Appellants also argue that even if the questionnaires could be used to determine suitability, du Pont's layoff procedures were arbitrary, improper, and evidence a lack of good faith.² On this basis, appellants challenge the following actions by du Pont: (1) arbitrary selection of the five-year cutoff date; (2) inadequate consideration given to the apprenticeship programs completed by appellants; and (3) failure to take into account employee confusion or error in responding to the questionnaire. The district court found no merit in any of these contentions.

With respect to the five-year cutoff date, appellants assert that by selecting this time period, du Pont may have improperly presumed that employees with greater than five years seniority were more qualified in the four critical skills areas than less senior employees. As the district court noted, appellants admitted that a cutoff date was needed, yet they could not demonstrate that another time period would be better suited. For those reasons, the lower court concluded that du Pont had acted reasonably in assuming that employees who had been with the company for five years were qualified for the jobs that would remain after the layoff.

Next, appellants argue that by completing a three-year apprenticeship program, they demonstrated that they were fully qualified to perform all paint craft skills. The district court, however, placed greater weight on the testimony of Thorpe, who indicated that the type of program completed by appellants simply provided basic training and a foundation to develop certain skills, and it did not educate them in "every skill in the painting trade." Joint App. at 58. The district court did not commit error in deciding to credit Thorpe's testimony on this point, and we find no reason to disturb the court's conclusion that du Pont properly considered the completion of the apprenticeship program in its layoff procedure. See Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985) (findings by the trial court based on determinations of witness credibility demand great deference under Rule 52(a)); Fed. R. Civ. P. 52(a).

Finally, appellants find fault with the layoff procedure because of du Pont's alleged failure to consider employee error in responding to the questionnaire. Specifically, appellant Robby Smith ("Smith") asserts that he was confused by the following inquiry on the questionnaire: "finishing trim work (furniture)." Joint App. at 81. Although he indicated that he was unqualified to do this type of work, he later testified that he read the question to mean furniture trim work only. Smith maintains that he is capable of performing a variety of trim work. The district court instead chose to credit the testimony of Whitt, who observed Smith doing trim work and felt that he was unable to perform the type of detailed trim work needed subsequent to the layoff. Thus, the court stated that even if the query had been ambiguous or misleading, du Pont had taken reasonable measures to insure that Smith was indeed unqualified in this area, and that it had acted reasonably in laying off Smith on the basis of Whitt's knowledge. Because this finding is amply supported by the record, we can find no reason to disturb it.

In summary, the collective bargaining agreement expressly authorizes du Pont to consider employee suitability for jobs that will remain following a layoff. The suitability determination includes consideration of ability, specific skills required for the job, and past performance. Rather than injecting a new factor into determining suitability, the questionnaires instead served the purpose of evaluating ability and skill. Moreover, du Pont did not rely exclusively on the questionnaires in laying off appellants; it combined the information obtained from the questionnaires with Whitt's personal observations of job performance. Because du Pont's use of this method to lay off employees was reasonable and not violative of the collective bargaining agreement, we affirm the judgment of the district court in favor of du Pont.

Du Pont requests this court to award its costs and attorney's fees pursuant to Fed. R. App. P. 38, which provides that " [i]f a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." Du Pont maintains that this appeal is frivolous since the arguments advanced by appellants were decided by this court in Kelly. While both the instant case and Kelly involve interpretation of the same provisions of the collective bargaining agreement between the parties, the issue decided in Kelly was whether reprimands could be used to determine job suitability. In this case, the issue is whether du Pont's use of the questionnaires to determine job suitability constituted a breach of the agreement. The decision in Kelly provided legal authority in the instant case, but the factual situations are distinguishable. Although we affirm the judgment of the district court, we do not find this appeal to be frivolous.

AFFIRMED