585 F2d 876 Arkansas State Highway Employees Local v. Smith J C a

585 F.2d 876

99 L.R.R.M. (BNA) 3168

ARKANSAS STATE HIGHWAY EMPLOYEES LOCAL 1315, James P.
Rowell, Robert C. Conley, Jake Franks, Edwin
Shinn, Spencer Y. Land, Walter Mays,
Robert Watson and A. D. Tate, Appellees,
v.
Maurice SMITH, Lawrence Blackwell, J. C. Patterson, George
Kell and James A. Branyan, Individually and as Commissioners
of the Arkansas State Highway Commission, and Henry Gray,
Individually and as Director of the Arkansas State Highway
Department, Appellants.

No. 78-1188.

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 14, 1978.
Decided Oct. 10, 1978.
Rehearing and Rehearing En Banc Denied Nov. 7, 1978.

Friday, Eldredge & Clark, Little Rock, Ark. and Tom Keys, Atty., Arkansas State Highway Commission, Little Rock, Ark., for appellants. Appendix was also filed by them.

John T. Lavey, Little Rock, Ark., for appellees.

Before LAY, BRIGHT and ROSS, Circuit Judges.

PER CURIAM.

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1

The Arkansas State Highway Employees Local 1315, and eight individual employees of the Arkansas State Highway Department instituted this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against Maurice Smith, Lawrence Blackwell, J. C. Patterson, George Kell and James A. Branyan, individually and as Commissioners of the Arkansas State Highway Commission, and Henry Gray, individually and as Director of the Arkansas State Highway Department. The complaint alleged, Inter alia, that the refusal of the Commission and the Department to allow Local 1315 to file or initiate grievances on behalf of its members deprived Local 1315 of its right to petition government for the redress of grievances in violation of the First Amendment to the Constitution of the United States.

2

The circumstances leading up to the present litigation concern Robert Watson and W. E. Hughes, employees of the Arkansas State Highway Department. Watson was discharged by the Department and Hughes was suspended without pay for five days. Following unsuccessful discussions with their supervisors, each employee sent a letter to Local 1315, explaining the nature of their grievance and requesting the union to process the grievances on their behalf. In each case the union forwarded the employee's letter to the designated employer's representative and included its own letter stating that it represented the employees and desired to set up a meeting. The employer's representative did not respond to the union's letter. Thereafter each employee filed a written complaint directly with the employer representative. Local 1315 represented each employee at subsequent meetings with the employer representative, Watson was notified later that his discharge was justified, while Hughes was advised that his grievance would remain under advisement pending this action.

3

On cross-motions for summary judgment the district court found that under the grievance procedure the Commission will not consider a grievance unless the employee submits his written complaint directly to the designated employer representative. Relying principally on United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), the district court concluded that that portion of the grievance procedure was unconstitutional because it prevents Local 1315 from filing a grievance on behalf of its members.

4

We agree and affirm the judgment of the district court on the basis of its opinion.

5

Plaintiffs' counsel is awarded a $300.00 attorney fee on this appeal.

6

It is so ordered.