Arbour vs. Laroche Industries, (5th Cir. 1999)

Docket Number: 99-30523

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

m 99-30523 Summary Calendar ERNEST J. ARBOUR; TED PACE; JOSEPH GUERIN; JASON GUIDRY; HARVEY MICHAEL SMITH; and MICHAEL GONZALEZ, Plaintiffs-Appellants, VERSUS LAROUCHE INDUSTRIES, INC.; C.E. BATON ROUGE, INC., and FEDERATED ALUMINUM COUNCIL, INC., Defendants-Appellees. Appeal from the United States District Court for the Middle District of Louisiana (97-CV-1134) November 26, 1999 Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM: * In this Â“hybrid actionÂ” brought pursuant to section 3 01 of the National Labor Relations Act, union members challenge the termination o f their employment that resulted from a transfer and s ubsequent plant closing. They charg e t heir union with breach of the duty of fair representation. The district court granted the defendantsÂ’ motion for summary judgment and explained its reasons in a compreh ensive and persuasive eighteen-page opinion entered on April 19, 1999. We affirm, essentially for the reasons given by the district court.

Plainti ffs claim the transfer agreement between LaRoche an d t he union required LaRoche to maintain their employment until the operating agreement ended and that their subsequent employer, C.E. Baton Rouge, Inc. (Â“C-EÂ”), viol a ted the collective-bargaining agreement by (1) failing to negotiate in go o d faith, insofar as it did not warn the transferring members at the time of transfer th at they contemplated closing the plant; and (2) failing to inform plaint iffs of its intention to close the plant sixty da ys before the i ntention arose, rather than sixty days before the plant closing would occur. Finally, plaintiffs assert that by ignoring these contract violations, t he union violated the duty of fair representation.

The district court dismissed the claim against LaRoche on the ground that the transfer agreement did not, on its face, provide a certain term of employment with LaRoche, b ut rather simply made arrangements for the employees (the agreement requiring, in whole, merely that the employees should, upon * Pursuant t o 5 T H C IR. R. 47.5, the court has determined that this opinion sho uld not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. termination, be provided for under the various company-benefit Â“summar y plansÂ”) should they be terminated at the end of the operating agreeme nt and then become Â“availableÂ” for employment by C-E. Because the transfer occurred more speedily th an the operating agreement had anticipated, this eventuality did no t arise; the transfer agreement was not triggered, and the plain t iffs found themselves transferred d irectly from the LaRoche co llective-bargaining structure to the C-E structure. The district court thus provided the most straight forward reading of the agreement.

The court also dismissed the claims against C-E, noting, correctly, that C-EÂ’s collectivebargaining agreement included no Â“good-faith bargainingÂ” requirement, so that even if ( 1) C-E had developed an intention to close the plant when it accepted the transferr e d member s, and (2) such acceptance without warning violated a duty of good faith, C-E had no contractual obligation to act in good faith.

Thus, any failure of good-fait h bargaining worked a violation of the statute, not t he co ntract, and must therefore have been complained of to the National Labor Relations Board, not the di stri ct court. The district courtÂ’s analysis is correct here, as well. The court could have bolstered its opinion by no t ing also that the plaintiffs provid e d no evidence that C-E actually anticipated closing the plant at the time of the employee transfer, so there is no evidence of a breach of good faith by which to escape summary judgment.

The plaint iffsÂ’ second claim against C-E is also devoid of merit. Their suggested reading of the contract would requi re C-E to gi ve warning of an intentio n t o close a plant sixty days before developing its first intention so to act. Such a metaphysical impossibility was probab l y not in the contemplation of the parties.

Fi n ally, the district court dismissed the charges against the union, because, having found no contractual violations by the employ ers, it found that the union had not failed fairly to represent the plaint iffs by failing to complain of these non-violations.

AFFIRMED.