explaining that if individual employees could bypass collective bargaining agreement with respect to grievance arbitration "the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation"
How later courts described this case
- explaining that if individual employees could bypass collective bargaining agreement with respect to grievance arbitration "the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation"
- reasoning that a CBA providing for grievance and arbitration procedure giving the union discretion to supervise the grievance process and to invoke arbitration gives both company and union assurances that similar complaints will be treated consistently, and major problem areas in the interpretation of the CBA can be isolated and perhaps resolved
- holding that where the union “has sole power under the contract to invoke the higher stages of the grievance procedure, and ... the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance,” the employee may seek judicial enforcement of his contractual rights.
- explaining that when an employee “resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been fully exhausted,” unless “the conduct of the employer amounts to a repudiation of those contractual provision”
Written by the judges who cited it.
Later courts went against this
Criticized by Local Union No. 90 of the American Flint Glass Workers' Union v. American Flint Glass Workers' Union, 374 F. Supp. 600 (1974)
In this regard, it is worth pointing out that, while Vaca has been criticized for unnecessarily restricting the rights of union members,5 the reasoning behind that restriction is peculiarly forceful in this case.
Distinguished
Distinguished by Jordan v. La-Z-Boy East, 644 F. Supp. 156 (1986)
The present case parallels the situation existing in Vaca, and is distinguishable from Griffin.
Distinguished by Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local No. 14, 453 F.2d 1018 (1972)
Appellee union argues that the Vaca exception is inapplicable because in that case the collective bargaining agreement provided that only the union could initiate a grievance, while in this case section 5(b) of the collective bargaining contract provides that the employee himself may do so.13
The opinion
Mr. Justice Fortas,
with whom The Chief Justice and Mr. Justice Harlan join, concurring in the result.
1. In my view, a complaint by an employee that the union has breached its duty of fair representation is subject to the exclusive jurisdiction of the NLRB. It is a charge of unfair labor practice. See Miranda Fuel Co., 140 N. L. R. B. 181 (1962); 1 Local 12, United Rubber Workers, 150 N. L. R. B. 312, enforced, 368 F. 2d 12 (C. A. 5th Cir. 1966). 2 As is the case with most other *199 unfair labor practices, the Board’s jurisdiction is preemptive. Garner v. Teamsters Union, 346 U. S. 485 (1953); Guss v. Utah Labor Board, 353 U. S. 1 (1957); San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959); Local 438, Constr. Laborers v. Curry, 371 U. S. 542 (1963); Plumbers’ Union v. Borden, 373 U. S. 690 (1963); Iron Workers v. Perko, 373 U. S. 701 (1963); Liner v. Jafco, Inc., 375 U. S. 301 (1964). Cf. Woody v. Sterling Alum. Prods., Inc., 365 F. 2d 448 (C. A. 8th Cir. 1966), pet. for cert. pending, No. 946, O. T. 1966. There is no basis for failure to apply the preemption principle in the present case, and, as I shall discuss, strong reason for its application. The relationship between the union and the individual employee with respect to the processing of claims to employment rights under the collective bargaining agreement is fundamental to the design and operation of federal labor law. ' It is not “merely peripheral,” as the Court’s opinion states. It “presents difficult problems of definition of status, problems which we have held are precisely ‘of a .kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole.’ ” Iron Workers v. Perko, supra, 373 U. S., at 706. Accordingly; the judgment of the Supreme Court of Missouri should be reversed and the ■ complaint dismissed for this reason and on this basis. I agree, however, that if it were assumed that jurisdiction of the subject matter exists, the judgment would still have to be reversed because of the use by the Missouri court of an improper standard for measuring the union’s duty, and the absence of evidence to establish that the union refused further to process Owens’ grievance because of bad faith or arbitrarily.
2. I regret the elaborate discussion in the Court’s opinion of problems which are irrelevant. This is not an action by the employee against the employer, and the *200 discussion of the requisites of such an action is, in my judgment, unnecessary. The Court argues that the employee could sue the employer under L. M. R. A. § 301; and that to maintain such an action the employee would have to show that he has exhausted his remedies under the collective bargaining agreement, or alternatively that he was prevented from doing so because the union breached its duty to him by failure' completely to process his claim. That may be; or maybe all he would have to show, to maintain an action against the employer for wrongful discharge is that he demanded that the union process his claim to exhaustion of available remedies, and that it refused to do so. 3 , I see no need for the Court to pass upon that question, which is not presented here, and which, with all respect, lends no support to the Court’s argument. The Court seems to use its discussion of the employee-employer litigation as somehow analogous to or supportive of its conclusion that the employee may maintain a court action against the union. But I do not believe that this follows. I agree that the NLRB’s unfair labor practice jurisdiction does not preclude an action under § 301 against the employer for wrongful discharge *201 from employment. Smith v. Evening News Assn., 371 U. S. 195 (1962). Therefore, Owens might have maintained an action against his employer in the present case. This would be an action to enforce the collective bargaining agreement, and Congress has authorized the courts to entertain actions of this type. But his claim against the union is quite different in character, as the Court itself recognizes. The Court holds — and I think correctly if the issue is to be reached — that the union could not be required to pay damages measured by the breach of the employment contract, because it was not the union but the employer that breached the contract. I agree; but I suggest that this reveals the point for which I contend: that the employee’s claim against the-union is not a claim under the collective bargaining agreement, but a claim that the union has breached its statutory duty of fair representation. This claim, I submit, is a claim of unfair labor practice and it is within the exclusive jurisdiction of the NLRB. The Court agrees that “one of the available remedies [obtainable, the Court says, by court action] when a breach of the union’s duty is proved” is “an order compelling arbitration.” This is precisely and uniquely the kind of order which is within the province of the Board. Beyond this, the Court is exceedingly vague as to remedy: “appropriate damages or equitable relief” are suggested as possible remedies, apparently when arbitration is not available. Damages against the union, the Court admonishes, should be gauged “according to the damage caused by [its] fault” — i. e., the failure to exhaust remedies for the grievance. The Court’s difficulty, it seems to me, reflects the basic awkwardness of its position: It is attempting to force into the posture of a contract violation an alleged default of the union which is not a violation of the collective bargaining agreement but a breach of its separate and basic duty fairly *202 to represent all employees in the unjt. This is an unfair labor practice, and should be treated as such. 4
3. If We look beyond logic and precedent to the policy of the labor relations design which Congress has provided, court jurisdiction of this type of action seems anomalous and ill-advised. We are not dealing here with the interpretation of a contract or with an alleged breach of an employment agreement. As the Court in effect acknowledges, we are concerned with the subtleties of a union’s statutory duty faithfully to represent employees in the unit, including those who may.not be members of the union. The Court — regrettably; in my opinion — ventures to state judgments as to the metes and bounds of the reciprocal duties involved in the relationship between the union and the employee. In my opinion, this is precisely and especially the kind of judgment that Congress intended to entrust to the Board and which is well within the pre-emption doctrine that this Court has prudently stated. 5 See cases cited, supra, es *203 pecially the Perko and Borden cases, the facts of which strongly parallel the situation in this case. See also Linn v. Plant Guard Workers, 383 U. S. 53, 72 (1966) (dissenting opinion). The nuances of union-employee and union-employer relationships are infinite and consequential, particularly when the issue is as amorphous as whether the union was proved guilty of “arbitrary or bad-faith conduct” which the Court states as the standard applicable here. In all reason and in all good judgment, this jurisdiction should be left with the Board and not be placed in the courts, especially with the complex and necessarily confusing guidebook that the Court now publishes.
Accordingly, I join the judgment of reversal, but on the basis stated.
This decision of the NLRB was denied enforcement by the Court of Appeals for the Second Circuit but on a basis which did not decide the point relevant here. NLRB v. Miranda Fuel Co., 326 F. 2d 172 (C. A. 2d Cir. 1963). Only one judge, Judge Medina, took the position that the NLRB had incorrectly held violation of the duty of fair representation to be an unfair labor practice. As an alternative ground for decision, he held that the NLRB had not had sufficient.evidence to support its finding of breach of the duty. Judge Lumbard agreed with this latter holding, and explicitly did not reach the question whether breach of the duty is an unfair labor practice. Judge Friendly dissented. He would have affirmed the NLRB both on the sufficiency of the evidence and on the holding that breach of the duty of fair representation is an unfair .labor practice as to which the NLRB can give relief.
The opinion by Judge Thomberry for the Fifth Circuit supports the views expressed heréin. See also Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151 , 172-173 (1957); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L. J. 1327 (1958).
Cf. my Brother Black’s dissenting opinion in this case. Cf. also Brown v. Sterling Alum. Prods. Corp., 365 F. 2d 651, 656-657 (C. A. 8th Cir. 1966), cert. denied, post, p. 957. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), does not pass upon the issue. The Court states that “To leave the employee remediless” when ■ the union wrongfully refuses to process his grievance, “would ... be a great injustice.” I do not. believe the Court relieves this injustice to any great extent by requiring the employee to prove an unfair labor, practice as a prerequisite to judicial relief for the employer’s breach of contract. Nor do I understand how giving the employee a cause of action against the union is an appropriate way to remedy the injustice which would exist if the union were allowed to foreclose relief against the employer.
The Court argues that since the employee suing the employer for breach of the employment- contract would have to show exhaustion of remedies under the contract, and since he would for this purpose have to show his demand on the union and, according to the Court, its wrongful failure to prosecute his grievance, the union could be joined as a party defendant; and since the union could be joined in such a suit, it may be sued independently.of the employer. But this is a non sequitur. As the Court itself insists, the suit against the union is not for breach -of the employment contract, but for violation of the duty, fairly to represent the employee. This is an entirely different matter. It is a breach of statutory duty — an unfair labor practice: — and not a breach of the employment contract.
In a variety of contexts the NLRB concerns itself with the substantive bargaining behavior of the parties. For example: (a) the duty to bargain in good faith, see, e. g., Fibreboard Corp. v. Labor Board, 379 U. S. 203 (1964); (b) jurisdictional disputes, see, e. g., Labor Board v. Radio Engineers, 364 U. S. 573 (1961); *203 (e) secondary boycotts and hot cargo clauses, see, e. g., Orange Belt District Council of Painters No. 48 v. NLRB, 117 U. S. App. D. C. 233, 328 F. 2d 534 (1964).