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December 7, 1992



The opinion of the court was delivered by: JOHN T. CURTIN

Plaintiff Thomas Ehrenburg ("Ehrenburg"), an employee of Defendant Outokumpu American Brass Company ("OAB") and a member of Defendant United Steelworkers of America, Local Union No. 593 ("Union"), filed this hybrid action for breach of contract and breach of the duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Plaintiff now moves for summary judgment and defendants cross-move.


 Thomas Ehrenburg has been employed by OAB or its predecessor since 1973. In 1986, he applied and was accepted into a new apprenticeship program created by a joint Union/OAB effort to give long-term employees an opportunity for promotion (Item 34, P 6). The program consisted of 8,000 hours (4 years) of on-the-job and classroom training. Ehrenburg completed his apprenticeship and was certified as a journeyman machinist in June 1990.

 On July 31, 1990, OAB posted an opening for a day-shift machinist job. The 1986 collective bargaining agreement ("Contract") between OAB and the Union states in pertinent part:

 Among those Employees of a given department, who are qualified to do the work which must be done, Plant-wide Seniority will be the determining factor in promotions to vacancies in higher rated jobs within the Bargaining Unit in that department . . . .

 Item 28, Ex. A, Art. V(7).

 Both Ehrenburg and Harry McFadden, a Union steward and an experienced journeyman, bid on the job. OAB awarded the job to McFadden despite the fact that Ehrenburg had 17 years of plant-wide seniority at the time of posting and McFadden had only 7 years.

 Ehrenburg wrote to the Grievance Committee Chairman Richard Hansen stating that he wanted to file a grievance because he was not given the day-shift machinist job despite his seniority over McFadden in violation of the Contract (Item 28, Ex. C). Hansen conferred with the Union's local president, Jack Williams, and former Grievance Chairman, Jeff Stearns, and confirmed that OAB had followed the no-first-bid rule in awarding the job (Item 34, PP 16-17).

 The no-first-bid rule was an oral agreement between OAB and the Union prohibiting new journeymen who had just completed the apprenticeship program from trumping the bids of more experienced journeymen. The rule was formulated by OAB and the union at the inception of apprenticeship program in 1986 to address the concerns of experienced journeymen who were essential to the program's success. Because the apprenticeship program was designed to help long-term employees, the journeymen feared that if seniority was plant-wide, as the Contract stipulated, the trainees would be able to outbid their teachers as soon as they became certified. The experienced journeymen wanted to limit seniority in job-bidding to the time of journeyman status. The "no-first-bid" was a compromise (Item 38, pp.6-7). A new journeyman was precluded from bidding on the first posting of a job after his certification unless no experienced journeyman wanted the job. After this first waiver, plant-wide seniority applied.

 Both the Union and OAB claim this rule has been in effect in the plant since the inception of the Apprenticeship Program pursuant to the 1986 Contract and had applied to previous programs (Item 36, P 6, Item 32, Lonie Aff.). There is no mention of the rule in either the Contract or the Apprenticeship Standards (Item 37, Ex.B), but the Union and OAB agree it supersedes both written documents.

 The Union states that all apprentices, including Ehrenburg, were informed of the rule upon admission to the program (Item 34, P 10, Item 36m P 8). Therefore, when Hansen replied to Ehrenburg's letter requesting that a grievance be filed, he reminded Ehrenburg that the job-posting procedure had been explained prior to the apprenticeship. He also stated that the Union would not take up the grievance because the company's actions were proper (Item 28, Ex. D).

 Ehrenburg denies that he was informed about a "no-first-bid" rule prior to his receipt of Hansen's letter (Item 42, Ex. 1). He has provided affidavits of other journeymen who went through the same or similar apprenticeships at OAB who also deny knowledge of such a rule. He claims that OAB's failure to award him the day-shift machinist job violated the Contract and the terms of the Apprenticeship standards, and the Union's refusal to grieve OAB's actions constitutes a breach of the duty of fair representation.


 Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, provides a "hybrid" cause of action to union members against their employers and unions for breach of contract and the duty of fair representation. Ehrenburg moves for summary judgment against OAB for violating the collective bargaining agreement by rejecting his bid for the day-shift job in favor of a journeyman with 10 years less seniority and against the Union for breaching its duty to represent him fairly by refusing to take up his subsequent grievance against the company. Both OAB and the Union cross-move for summary judgment.

 For any of the parties to prevail on a motion for summary judgment, it must be shown that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A material fact is one "that might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The inferences drawn from the underlying facts contained in the moving party's materials must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. ...

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