John Schultz v. Owens-Illinois Incorporated and District No. 9, International Association of MacHinists and Aerospace Workers

COFFEY, Circuit Judge,

concurring.

I concur in the result reached by the majority in Part III, infra, that there has been no breach of the duty of fair representation, but I am compelled to write separately because I feel the majority has misinterpreted the basic' federal labor policy mandating that the manner in which disgruntled or aggrieved employees file grievances and indeed their right to file a grievance must initially be determined by resort to their labor contract. As noted by the district court, every plaintiff herein, except Schultz, “failed to file grievances or formal claims against Owens-Illinois pursuant to the grievance and arbitration machinery of the labor contract.” It is a basic tenet in almost all labor contracts that individual employees wishing to assert a contract grievance must initially make use of those procedures (arbitration, etc.) provided for in the labor contract between the parties. Re *518 public Steel v. Maddox, 379 U.S. 650 , 85 S.Ct. 614 , 13 L.Ed.2d 580 (1969). While the majority opinion agrees with this basic concept and indeed cites Republic Steel, I feel a more extensive quotation of the language in Republic Steel will more clearly and emphatically demonstrate how strong and firmly entrenched the policy is to promote initial redress to contractual grievance procedures before allowing parties to proceed in the federal courts.

“As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. If the union refuses to press or only perfunctorily presses the. individual’s claim, differences may arise as to the forms of redress then available. But unless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the ‘common law’ of the plant. Union interest in prosecuting employee grievances is clear. Such activity complements the union’s status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union’s prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees. And it cannot be said, in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so.

A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish an uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation ‘would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ”

Republic Steel, 379 U.S. at 652-53 , 85 S.Ct. at 616-617 (citations and footnotes omitted, some emphasis supplied).

This strong statement of federal labor policy mandates that employees who are aggrieved by the actions of their employer must first look to and follow the language contained in their labor contract, the “exclusive method for orderly settlement of employee grievances.” It is only after this “exclusive method” fails that the federal courts are available to the grievant. Courts must not permit employees to ignore the procedures mutually agreed upon for handling grievances by filing suit in the federal courts, thus increasing the burden on our already overcrowded court system. Grievance procedures, including arbitration, were agreed upon by labor and management to avoid the time and expense of litigation and further to avoid industrial strife. United States Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960). Once we allow workers, as the majority suggests, to circumvent these contractually agreed upon procedures, we invite industrial strife and undermine the validity of the collective bargaining process.

The contract in the instant dispute requires that any grievance be filed within three working days of the event giving rise to the claim. The plaintiffs herein (with the exception of Schultz) did not even attempt to file a grievance, completely disregarding the three-day time limit set forth in the labor contract. The majority ignores the fact that “[w]e must construe the contract as written, rather than make a new contract for the parties,” Oddie v. Ross Gear and Tool Co., 305 F.2d 143, 148 (6th *519 Cir.1962), and expands upon existing case law, citing Glover v. St. Louis-San Francisco R.R., 393 U.S. 324 , 89 S.Ct. 548 , 21 L.Ed.2d 519 (1969), in an effort to avoid the plaintiffs’ failure to follow the steps set forth in the contract. In Glover Justice Black noted that certain exceptions exist to the requirement of exhaustion of intraunion remedies. The majority notes that one exception is where “a formal effort to pursue contract or administrative remedies would be absolutely futile.” Id. at 331 , 89 S.Ct. at 552 . However, the majority’s analysis of Glover stops too short. The quotation relied upon by the majority is followed by the statement that “[u ]nder these circumstances, the attempt to exhaust contractual remedies, required under [Republic Steel Corp. v. Maddox], is easily satisfied by petitioners’ repeated complaints to company and union officials, and no time consuming formalities should be demanded of them.” Id. (Some emphasis supplied). Glover involved the petition by eight black and five white men, all employees of the St. Louis-San Francisco R.R. Co. employed to repair and maintain passenger and freight cars. The plaintiffs alleged that the railroad/employer refused to promote its black workers in accordance with a tacit understanding between the employer and the Union. In an amended complaint, the plaintiffs alleged that they had repeatedly complained both to representatives of the Union and to representatives of the company concerning the violation of the collective bargaining agreement. The Glover Court responded:

“[t]he allegations are that the bargaining representatives of the car employees have been acting in concert with the railroad employer to set up schemes and contrivances to bar Negroes from promotion wholly because of race. If that is true, insistence that petitioners exhaust the remedies administered by the union and the railroad would only serve to prolong the deprivation of rights to which these petitioners according to their allegations are justly and legally entitled.”

Glover, 393 U.S. at 331 , 89 S.Ct. at 552 (emphasis supplied).

In contrast to the egregious conduct of the Union and the employer in Glover , there is nothing in the record in the instant case which demonstrates that the bargaining representatives and Owens-Illinois were “acting in concert” or “set up schemes and contrivances” to deprive the plaintiffs herein of rights to which they are legally entitled. While it is true that the Union and the employer mutually agreed upon an interpretation of the contract which is adverse to the plaintiffs’ position, this alone does not justify the majority’s conclusion that “once Schultz’s grievance was rejected, it would be futile for the plaintiffs other than Schultz to have filed grievances.” The conduct of the employer and the Union herein does not rise to the level of the parties in Glover , and therefore the mere assumption on the part of the plaintiffs that the Union would not effectively act upon their grievances is insufficient to disregard the filing requirements of the contract and Republic Steel.

Finally, I take issue with the majority’s position that the defendants should be equitably estopped from raising the defenses of the plaintiffs’ failure to timely file a grievance and/or exhaust intraunion remedies. Initially, it must be noted that even if the doctrine of equitable estoppel were to be available to any of the plaintiffs, which I do not concede that it is, that doctrine would only be available to Schultz. This is so because the Union’s action or inaction with respect to objecting to the timeliness of Schultz’s filing could only reasonably induce action or inaction on the part of Schultz. Schultz’s grievance was an individual one, and as such, any action on the part of the defendants with regard to this grievance affects Schultz only. Thus, I cannot understand the majority’s position that “the groundwork could have been laid for the filing of a timely grievance, and the claim could thus have been preserved.” The district court noted that Schultz’s grievance was filed in 1976, while the events which gave rise to the grievance occurred during the period of 1971 through 1974. I am unable to understand what “groundwork could have been laid for the filing of a *520 timely grievance” which the majority asserts would have allowed Schultz (or any of the plaintiffs) to file grievances within the three-day time limit even if the Union had initially contested the timeliness of Schultz’s grievance. The filing deadline had passed some two to five years before there was any action or inaction on the part of the Union with respect to the timeliness of Schultz’s grievance. Therefore, since our review is limited to a reading of the four-corners of the labor contract and we “must construe the contract as written rather than make a new contract for the parties,” and since there could be no reliance or change of position by any of the plaintiffs with respect to the Union’s failure to object to the timeliness of Schultz’s grievance, I would affirm the district court on the issues discussed herein.