Petition — Ruzicka v. General Motors Corp.
Supreme Court brief1983
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IN THE
Supreme Court of the United States
October Term, 1983
WILLIAM RUZICKA,
Petitioner,
v
GENERAL MOTORS CORPORATION,
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW,
and its Local 166,
Respondents.
e
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
——_ e——_
Robert J. Dinges (P 12799)
GLOTTA, ADELMAN, DINGES & RILEY, P.C.
ATTORNEYS AT LAW
1529 Broadway, 4th Floor
Detroit, MI 48226-2174
(313) 964-1190
COUNSEL FOR PETITIONER
Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226
(313) 962-8745
«
>
i
QUESTIONS PRESENTED
I.
WHERE THE UNION OWES A DUTY TO PROCESS A
MERITORIOUS GRIEVANCE OF AN EMPLOYEE IN A
NON-PERFUNCTORY FASHION, AND WHERE THE UNION
HAS NEGLECTED TO TAKE A BASIC AND REQUIRED STEP
IN THE EXCLUSIVE ARBITRATION AND GRIEVANCE PRO-
CEDURES, AND WHERE THE UNION HAS MADE NO
DECISION ON THE MERITS OF THE EMPLOYEE'S
GRIEVANCE, AND WHERE THE GRIEVANCE INVOLVES
IMPORTANT INDIVIDUAL RIGHTS SECURED BY THE
CONTRACT, HAS THE UNION VIOLATED ITS DUTY OF
FAIR REPRESENTATION BECAUSE OF ITS NEGLIGENCE?
Il,
WHERE THE UNION AND EMPLOYER ESTABLISHED A
PAST PRACTICE OF CUSTOMARY NON-ENFORCEMENT
OF CONTRACT DEADLINES UNDER THE EXCLUSIVE AR-
BITRATION AND GRIEVANCE PROCEDURES IN THE CON-
TRACT, AND WHERE THE UNION NEGLECTS TO TAKE A
BASIC AND REQUIRED STEP IN THE PROCEDURES IN
ACCORDANCE WITH THE CONTRACT DEADLINES IN
ACTUAL RELIANCE UPON THE ESTABLISHED PAST
PRACTICE WITH THE EMPLOYER, AND WHERE THE UN-
ION’S RELIANCE IS NOT MOTIVATED BY BAD FAITH,
MAY THE EMPLOYEE UNDER THE VACA STANDARDS
CHALLENGE THE UNION DECISION ON THE GROUNDS
THAT IT WAS AN IRRATIONAL AND UNREASONED DECI-
SION AND TOO INSUBSTANTIAL TO SUPPORT THE
UNION ACTION WHEN THE UNION DECISION IS NOT A
DECISION ON THE MERITS OF THE GRIEVANCE?
ll
II.
DOES THE EMPLOYEE HAVE STANDING TO SEEK REVIEW
OF THE DISTRICT COURT'S DECISION VACATING THE
FAVORABLE ARBITRATION AWARD WHERE AN
EMPLOYEE FILES SUIT, PURSUANT TO § 301, 29 USC § 185,
AGAINST HIS EMPLOYER FOR WRONGFUL DISCHARGE
AND JOINS IN THAT SUIT A CLAIM AGAINST HIS UNION
FOR VIOLATION OF ITS DUTY OF FAIR REPRESENTATION,
AND WHERE THE UNION IN THAT SUIT OBTAINS AN
ORDER COMPELLING THE EMPLOYER TO ARBITRATE
THE EMPLOYEE'S DISCHARGE GRIEVANCE, AND WHERE
AN ARBITRATOR SELECTED BY THE EMPLOYER AND
UNION HOLDS THAT THE EMPLC YEE’S DISCHARGE IS IN
VIOLATION OF THE CONTRACT, AND WHERE THE
UNION SEEKS TO ENFORCE THE FAVORABLE ARBITRA-
TION AWARD, AND WHERE THE DISTRICT COURT VA-
CATES THE FAVORABLE ARBITRATION AWARD, AND
WHERE THE INTERESTS OF THE EMPLOYEE ARE NOT
ADVERSE TO THE INTERESTS OF THE UNION IN EN-
FORCING THE FAVORABLE ARBITRATION AWARD, AND
WHERE THE GRIEVANCE INVOLVES UNIQUELY PER-
SONAL RIGHTS, AND WHERE THE EMPLOYEE WILL
OTHERWISE SUFFER SUBSTANTIAL HARM?
IV.
WHERE THE EMPLOYER AND UNION ESTABLISHED A
PAST PRACTICE OF CUSTOMARY NON-ENFORCEMENT
OF CONTRACTUAL DEADLINES IN THE EXCLUSIVE GRIE-
VANCE AND ARBITRATION PROCEDURES IN THE CON-
TRACT, AND WHERE THE UNION NEGLECTS TO TAKE A
BASIC AND REQUIRED STEP IN THE PROCEDURES IN AC-
CORDANCE WITH THE CONTRACT DEADLINES, AND
WHERE THE UNION’S NEGLECT IS ATTRIBUTED TO ITS
RELIANCE ON THE PAST PRACTICE OF CUSTOMARY
NON-ENFORCEMENT OF CONTRACT DEADLINES, AND
ill
WHERE THE EMPLOYER REFUSES TO ABIDE BY THE
ESTABLISHED PAST PRACTICE WITH THE UNION AND
INSISTS ON THE STRICT REQUIREMENTS OF THE CON-
TRACT DEADLINES, AND WHERE THE EMPLOYER Dt
FENDS THE EMPLOYEE’S SUIT FOR WRONGFUL DIS-
CHARGE IN VIOLATION OF THE CONTRACT ON THE
GROUNDS THAT THE EMPLOYEE HAS FAILED TO
EXHAUST THE CONTRACTUAL PROCEDURES, HAS THE
EMPLOYER WAIVED OR REPUDIATED THE CONTRAC-
TUAL PROCEDURES AND IS THE EMPLOYER THEREFORE
ESTOPPED FROM RAISING THIS DEFENSE IN THE
EMPLOYEE SUIT?
V.
WHERE, IN A DUTY OF FAIR REPRESENTATION SUIT, THE
UNION OBTAINS A COURT ORDER COMPELLING THE
EMPLOYER TO ARBITRATE THE EMPLOYEE'S GRIEVANCE,
AND WHERE AT THAT STAGE OF THE LITIGATION THE
ARBITRABLE ISSUE OF THE TIMELINESS OF THE GRIEV-
ANCE IS SUBSTANTIALLY RESOLVED, AND WHERE THE
ARBITRATION AWARD IS FAVORABLE TO THE
EMPLOYEE, UNDER THOSE CIRCUMSTANCES, IS THERE A
WAIVER BY VIRTUE OF FEDERAL LABOR POLICY OF THE
ARBITRABLE ISSUE OF THE TIMELINESS OF THE
EMPLOYEE’S GRIEVANCE SO AS TO ESTOP THE
EMPLOYER FROM RELYING UPON THIS DEFENSE TO A
FAVORABLE ARBITRATION AWARD?
Vv
TABLE OF CONTENTS
COTe TF MOROIIIINS on oc Gc ok oe OG SS eee eee:
See Oe NO ais awa ea dere nwa ees Baan
PGS NNW one na kee cls tua d cdc oe eenens
SINE eae ree an at coe, core Cy rs co
Statute Involved. SAS AA AT re Ene
DURE OF Ce ec oe cc cate pha: ekviasen
Reasons for Granting the Writ ...................
ENE ci ee ee es oe te GP ee ng oe
Appendix
Memorandum Opinion of the District Court
Denying Defendants’ Motion to Dismiss
UE SG tae oe ig os Ch Mr fan aie hes oes
Memorandum Opinion and Order of the District
Court Denying Defendants’ Motions for
Summary Judgment (April 25, 1973)..........
Memorandum Opinion of the District Court
Dismissing the Complaint (November 21, 1973)
Opinion of the Court of Appeals Reversing the
Judgment of the District Court and Remanding
the Case (September 23, 1975) ...............
Order of the Court of Appeals Denying
Defendants’ Petition for Rehearing (December
F; RIVED 2h cwae ue ier che dense ecic cena hes nes
Opinion of the District Court Finding in Favor of
Plaintiff and Against Defendants (October 10,
rd pS geet: Sp ARR STR cre Wee Un ap
a GQ Nw AW
31
37
41
48
67
vi
Page
Opinion of the Court of Appeals Vacating the
Decision of the District Court and Remanding
Gee Lose: Gone 2; TR). oo 5a voce eee 106
Opinion and Order of the District Court
Dismissing the Case (August 13, 1981) ....... 118
Opinion of the Court of Appeals Affirming the
Judgment of the District Court (May 23, 1983) 128
Judgment of the Court of Appeals (May 23, 1983) 131
TABLE OF AUTHORITIES
Cases:
Acuff v United Paper Workers, 404 F 2d 169 (5th
Gel, THE Secs vis cee sanghreseuceeeee 21
Andrus v Convoy Co, 480 F 2d 604 (9th Cir, 1973)
cert. den. 414 US 989 (1974) ................. 21
Baldini v Local 1095, UAW, 581 F 2d 145 (7th Cir,
WOOD ss boca nabae otal 000 denis Oo ere 17
Barton Brands v NLRB, 529 F 2d 793 (7th Cir, 1976) 10
Bazarte v United Transportation Union, 429 F 2d 868
Cee Cle POF oi a acvines take ee eee ee 13
Beriault v Local 40, 501 F 2d 258 (9th Cir, 1974).. 10
Bowen v United States Postal Service, _ US _; 74L
Ed 2d 402; 103 S Ct 588 (1983).......... 7, 15, 29
Capobianco v Brinks, 543 F Supp 971 (E.D., NY,
SOND sb naoe tl cerekan cians duneahe coe 22
Central Motor Express, Inc v Local 89, 407 F Supp
BAG7 UN 2D. Th, TP oes bean iectden eee 22
Coe v Rubber Workers, 571 F 2d 1349 (5th Cir, 1978) 14
vii
Cronin v Sears, 588 F 2d 616 (8th Cir, 1978) ..... 13
DeArroyo v Sindicato DeTrabajadores Packing
House, 425 F 2d 281 (1st Cir, 1970); Cert. den.
etn srg hs CASE RSE a eee 10, 14
DeLorto v UPS, 401 F Supp 408 (D.C., Ma, 1975) 22
DelCostello v_ International Brotherhood of
Teamsters, __ US __, 76 L Ed 2d 476; 103 S Ct _
PREG sien bens sa ere cuter ss dure earkenek 7, 29
Denver Stereotypers Union v NLRB, 623 F 2d 134
SE ONE wis toe aac hr ne toe eee 14
Dill v Greyhound, 435 F 2d 231 (6th Cir, 1970); cert.
Ss ee Se Oe AP ER sb Poko sadannewiah acc 13
Dober v Roadway Express, _ F 2d _; 113 LRRM
Sere re Ga, OO, TOD sd boos eves dbo aden 10
Drake Bakeries v Bakery Workers, 370 US 254; 8 L
Ed 2d 474; 82 S Ct 1346 (1962) ............... 25
Ekas v Carling National Breweries, Inc, 602 F 2d 664
(4th Cir, 1979), cert. den. 444 US 1017 (1980) 13
Elgin, ] & E. R. Co v Burley, 325 US 711; 89 L Ed
1886; 65 S Ct 1282 (1945), aff’d on reh. 327 US
ME Svaueoteeurey cure cenVeeie weer a ash aaa: 23
F. W. Woolworth v IBT, Local 781, 629 F 2d 1204
PO ORG Cac se ice s'pe> cack eke caaee 19, 20
Ford Motor Co v Huffman, 345 US 330; 97 L Ed
Pe See Nr CRUD 6 v5 0's icv oe Vb Re wine a 9
Foust v IBEW, 572 F 2d 710 (10th Cir, 1978), rev’d
on other grounds 442 US 42 (1979) ........... 14
Griffin v United Auto Workers, 469 F 2d 181 (4th
ee INS ova dae pe os ele keke oud cat 10, 17
viii
Page
Hadaway v Mountainside Transport, 104 LRRM
PTE ean We SUN ee ance tcetxcenensunes 22
Hines v Anchor Motor Freight, Inc, 506 F 2d 1153
(6th Cir, 1974), rev'd in part 424 US 554, 47 L
Hd 2d 231; 96'S Ct 1068 (1976)... 25... 14, 15, 22
Hoffman v Lonza, 658 F 2d 519 (7th Cir, 1981) 10, 14
Hughes v International Brotherhood of Teamsters,
Local 683, 554 F 2d 365 (9th Cir, 1977)........ 14
Humphrey v Moore, 375 US 335; 11 L Ed 2d 370; 84
PE POP AMON Siocon avescss cas Pane R hasan Ab
Lee v Olin Mathieson Chem Corp, 271 F Supp 635
ia PR SPCR ce ratdradenebates + ciewcrentans 21
Milstead v International Brotherhood of Teamsters,
Local 957, 580 F 2d 232 (6th Cir, 1978)........ 14
Minnis v United Auto Workers, 531 F 2d 850 (8th
OR ED ORRIN A I Ale et At A A 10, 14
Price v International Brotherhood of Teamsters, 457 F
ae ee Ge GS a ho kk odes cae be gow aeens 23
Quimby v TWA, 401 F Supp 137 (D.C. Pa, 1975)
aff'd 538 F 2d 320 (3rd Cir, 1976) ............ 22
Retana v Elevator Operators Union Local 14, 453 F
ee RE es RD io can ba cu seaneieeedsas 10
Riley v Letter Carriers, Local 380, 493 F 2d 342 (D,
NJ, 1980) dismissed on other grounds 668 F 2d
Pe EO SA, BONED 59's dee in ven svdet enn eencuss 25
Robesky v Quantas Empire Airways, 573 F 2d 1082
Ge ey SUED cciacdcckcatsansaueeonwess 14, 17
Ryan v Printing Pressmans Union, 590 F 2d 451 (2nd
et NOR cba ke sake ene ivenunus hen bee eenen es 13
ix
Page
Santos v Carpenters District Council, 547 F 2d 197
RS Sis: SOP TD a eee oe tone ae 2
Segarra v Sea Land Service, Inc, 581 F 2d 291 (1st
Ca SPE wish ucomeacis vod keen cee ean 14
Smith v Evening News Ass'n, 371 US 195; 9 L Ed 2d
a SESS CO. a ae ae 22
Smith v Hussman Refrigerator Co, 619 F 2d 1229
Cee Saat, De tt Sicdy cece cee ee 15
Smith v Pittsburgh Gauge & Supply Co, 464 F 2d 870
Ge Gy . si a ee eee 10
Steele v Louisville & Nashville R. Co, 323 US 192; 89
, Bes: 175; 66 GS Ce Fh GOD 6 obi ov ces y
Stephens v Postmaster General, 623 F 2d 594 (9th
Sly. CO ses aaleee ba hie ee ee eee 14
Tedford v Peabody Coal Co, 533 F 2d 952 (5th Cir,
ser pret Setar Beene se cal Stee iS, IZ
United Parcel Service, Inc v Mitchell, 451 US 56; 67
L Ed 2d 732; 101 S Ct 1559 (1981) ............ 21
Uncted Steelworkers of America v Enterprise Wheel
& Car Corp, 363 US 593; 4 L Ed 2d 1424; 80S Ct
BIO COO Wi iweawuecceakeuwant ee 21
Vaca v Sipes, 386 US 171; 17 L Ed 2d 842; 87S Ct
Pee CEE v6as Seka ee 9, 10, 15, 27, 28
Welshhons v Sivyer Steel Corp, 674 F 2d 748 (8th
CR, WO bo dade ahis Gove kecdias ee 13
Williams v Teamsters, 625 F 2d 138 (6th Cir, 1980) 14
Wyatt v Interstate & Ocean Transport Co, 623 F 2d
ee CO GRO) BOND 0 kv cen chs basicesect tee 14
Statutes:
Se USS BT iio sc cecuccect aie 2
Labor-Management Relations Act, § 301, 29
Bey Mek vavcck sans ev cuanaeeeeees 4,6,7
No.
IN THE
Supreme Court of the United States
_e-—
October Term, 1983
°
WILLIAM RUZICKA,
Petitioner,
v
GENERAL MOTORS CORPORATION,
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW,
and its Local 166,
Respondents.
°
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
— e«——.
OPINIONS BELOW
Ruzicka v General Motors Corp, 336 F Supp 824 (E.D.
Mich, 1972); 85 LRRM 2419 (E.D. Mich, 1973); 86 LRRM
2030 (E.D. Mich, 1973); rev’d, 523 F 2d 306 (6th Cir,
1975); reh. den., 528 F 2d 912 (6th Cir, 1975); 96 LRRM
2822 (E.D. Mich, 1977); vacated, 649 F 2d 1207 (6th Cir,
1981); 519 F Supp 893 (E.D. Mich, 1981); aff'd, _ F 2d _,
113 LRRM 2562 (6th Cir, 1983).
2
JURISDICTION
The judgment of the Court of Appeals for the Sixth
Circuit was entered on May 23, 1983. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1254(1).
STATUTE INVOLVED
Section 301 of the Labor Management Relations Act of
1947, 28 U.S.C. § 185:
“(a) Suits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as
defined in this Act, or between any such labor
Organizations, may be brought in any district
court of the United States having jurisdiction of
the parties, without respect to the amount in
controversy or without regard to the citizenship
of the parties.
(b) Any labor organization which represents
employees in an industry affecting commerce as
defined in this Act and any employer whose
activities affect commerce as defined in this Act
shall be bound by the acts of its agents. Any such
labor organization may sue or be sued as an
entity and in behalf of the employees whom it
represents in the Courts of the United States. Any
money judgment against a labor organization in a
District Court of the United States shall be
enforceable only against the organization as an
entity and against its assets, and shall not be
enforceable against any individual member or his
assets.
(c) For the purposes of actions and proceedings
by or against labor organizations in the District
3
Courts of the United States, District Courts shall
be deemed to have jurisdiction of a labor
organization (1) in the district in which such
organization maintains its principal office, or (2)
in any district in which its duly authorized
officers or agents are engaged in representing or
acting for employee members.
(d) The service of summons, subpoena, or other
legal process of any Court of the United States
upon an officer or agent of a labor organization,
in his capacity as such, shall constitute service
upon the labor organization.
(e) For the purposes of this section, in
determining whether any person is acting as an
‘agent’ of another person so as to make such other
person responsible for his acts, the question of
whether the specific acts performed were actually
authorized or subsequently ratified shall not be
controlling.”
STATEMENT OF THE CASE
Petitioner (hereinafter plaintiff), a long time union
activist, was discharged from his employment at General
Motors on March 31, 1971, for being intoxicated on the
job and using threatening and abusive language towards
his supervisors.
A grievance was filed protesting plaintiff's discharge
by the duly authorized bargaining representative, Local
166, United Automobile Aerospace and Agricultural
Implement Workers of America (UAW). The grievance
was denied by local management and then appealed by
the Union to the third step of the grievance procedure. In
order to complete procedurally the third step of the
grievance procedures, statements of unadjusted
grievance were required, under paragraph 37 of the
+
contract, to be exchanged between the Union and the
Local Management.
After two written extensions to exchange the
statements were obtained by the Union, the contract
exchange deadline became May 5, 1970. However, on
May 5, 1970, the Union representative, Charles Panter,
neglected to file the Union statement.
The Union’s neglect was not discovered until May 25,
1970, when Mr. Panter’s successor as Shop Chairman,
William Moon, attempted to exchange with local
management the Union statement. Management refused
to accept the Union statement and refused to extend the
contract deadline contending that the contract deadline
had expired and, in accordance with paragraph 34 of the
contract, management's paragraph 77 answer denying
the grievance was the final decision on the grievance.
A policy grievance was filed by the Union contending
that management failed to abide by past practice when it
enforced the contract deadline. The policy grievance was
subsequently withdrawn by the Union because it lacked
mc it.
On June 3, 1971, plaintiff filed a suit in the United
States District Court for the Eastern District of Michigan.
Jurisdiction was invoked under § 301, Labor
Management Relations Act of 1947, 29 U.S.C. § 185(a).
On November 29, 1973, District Judge John Feikens
dismissed the claim against the Union, holding that the ©
plaintiff failed to establish that hostility tainted the
Union’s handling of the grievance. Judge Feikens also
dismissed the Union's cross-claim for arbitration against
General Motors.
On September 23, 1975, the Sixth Circuit Court of
Appeals reversed. The Sixth Circuit held that, when a
union makes no decision as to the merits of a grievance
and allows the grievance to expire by negligently failing
5
to take a basic and required step in a grievance
procedure, it violates its duty of fair representation.
The Sixth Circuit also reversed the dismissal of the
cross-claim for arbitration and ordered arbitration on the
merits of the grievance. Arbitration of the grievance took
place by the GM-UAW arbitrator. He held that discharge
was too harsh a penalty for plaintiff's misconduct and
ordered reinstatement.
After submission of additional proofs on the urifair
representation claim, Judge Feikens confirmed the
arbitration award and allocated damages against General
Motors and the Union.
On June 2, 1981, the Sixth Circuit Court of Appeals
reversed. The Sixth Circuit held that the District Judge
erred when he failed to consider whether or not the
Union representative relied on a past practice of freely
granting extensions when he neglected to timely
exchange the Union statement.
On remand, the District Judge found that the Union
representative relied, in part, on the customary
non-enforcement of contract deadlines at the plant.
However, the Judge contradicted himself in footnote 4 of
that Opinion, finding that since the plant practice only
“extended’’ the deadline a few days and since the Union
did not attempt to exchange the statements until three
weeks after the deadline, the grievance was still
untimely. The District Judge also vacated the arbitration
award holding that the validity of arbitration was
conditioned by a finding of unfair representation.
United States Court of Appeals for the Sixth Circuit
affirmed. The Court held that reliance was determined
by the union representative’s motive or intent.
The Sixth Circuit held that only the Union could
appeal the decision vacating the arbitration award.
6
Plaintiff had no standing to raise this issue in this
appeal.'
REASONS FOR GRANTING THE WRIT
In a suit by an employee under § 301 against the
employer for wrongful discharge and against the union
for violation of its duty of fair representation, the
question of the evidence necessary to establish a breach
of the union’s duty to process a meritorious grievance in
a non-perfunctory fashion is an important and recurrent
federal statutory question and has provoked a diversity
of judicial opinion. The lower courts are hopelessly
confused about the circumstances under which a union
may violate its duty to process a meritorious grievance in
a non-perfunctory fashion. The plaintiff contends that
under Vaca, a union violates the perfunctory processing
standard when the union, without having decided the
merits of the grievance, allows the grievance to expire by
its procedural negligence. This Court has not yet decided
whether or not negligence principles should be applied
under certain circumstances to union conduct which
substantially prejudices an employee’s grievance. A
resolution of this question is of great importance to
employees covered by collective bargaining agreements
and their unions and employers.
In addition, this Court has not yet determined the
circumstances under which a union violates its duty to
avoid arbitrary conduct under the Vaca standards. There
is a diversity of judicial opinion on whether or not a
union violates its duty to avoid arbitrary conduct only
' The facts and law in this case are contained in the various
decisions of the District Court and of the Sixth Circuit. Ruzicka v
General Motors Corp., 336 F Supp 824 (E.D. Mich, 1972), 85 L.R.R.M.
2419 (E.D. Mich, 1973), 86 L.R.R.M. 2030 (E.D. Mich, 1973), rev'd, 523
F 2d 306 (6th Cir, 1975), reh. denied, 528 F 2d 912 (6th Cir, 1975,
[Ruzicka 1], 96 L.R.R.M. 2822 (E.D. Mich, 1977), vacated, 649 F 2d 1207
(6th Cir, 1981) [Ruzicka II], 519 F Supp 893 (E.D. Mich, 1981), aff'd _
F 2d —, 113 L.R.R.M. 2562 (6th Cir, 1983) [Ruzicka III].
7
when there is an intentional action designed to
substantially prejudice the employee’s grievance. There
is also a diversity of judicial opinion on the cir-
cumstances under which a union may violate its duty of
fair representation when it engages in honest and
unintentional action which substantially prejudices an
employee's grievance. Plaintiff contends that a union
violates its duty to avoid arbitrary conduct when it
makes an irrational and unreasoned decision which
substantially prejudices the employee's grievance,
especially when the union decision is not on the merits
of the grievance.
This Court has never determined whether or not an
order compelling arbitration is an available remedy to
a union that has been joined as a defendant in an
employee suit under § 301 for violation of its duty of fair
representation. Ii! addition, this Court has not yet
determined the impact that an order compelling
arbitration has on the arbitrable issue of the timeliness of
the employee’s grievance. The plaintiff contends that in
an employee suit under § 301, an order compelling
arbitration is an available remedy to the union when the
arbitrable issues have been substantially resolved. Thus,
the arbitrable issue of the timeliness of the employee's
grievance is waived under the federal labor policy and an
employer is estopped from asserting this defense to a
favorable agbitration award. This is an especially
important shies of federal labor policy in light of this
Court’s most recent decisions in DelCostello v
International Brotherhood of Teamsters, _ US —, 76 L Ed
2d 476 (1983); and Bowen v United States Postal Service, —
US —, 74 L Ed 2d 402 (1983).
There is currently a division of opinion in the Courts
of Appeals about whether or not an employee has
standing to seek judicial enforcement of a favorable
8
arbitration award. This Court has not yet determined the
circumstances, if at all, under which an employee has
standing in a judicial proceeding when the validity of an
arbitration award is at issue. This is an important
question of federal labor policy and is of great
importance to employees, unions, and employers. In
this suit, the Union neglected to take a required and
necessary step within the deadlines established by the
exclusive arbitration and grievance procedures and thus
the plaintiff's discharge grievance expired. However, the
Union had established with the employer a past practice
of customary non-enforcement of contract deadlines
under the procedures. The Union relied upon the
established past practice with the employer when it
neglected to exchange its statement within the
contractual deadlines. When the Union discovered its
neglect, it attempted to extend the deadlines in
accordance with established past practice. However, the
employer refused to abide by established past practice
and enforced the contractual deadlines.
It has now been determined by the Sixth Circuit that
the Union’s actual reliance on the established past
practice of non-enforcement of contractual deadlines is
sufficient to relieve the Union from its violation of the
duty of fair representation. Under the circumstances, it
has been clearly established that the employer has
repudiated or waived the contractual deadline
procedures. Thus, if plaintiff has standing, the favorable
arbitration award is perfectly valid.
There are many substantial issues raised in this
Petition. The plaintiff has engaged in prolonged
litigation in order to obtain the individual rights secured
to him under the collective bargaining agreement. He
has even obtained a favorable arbitration award on the
merits of his discharge grievance. But yet, the Courts
below have denied him any relief because they have
9
repeatedly misinterpreted the Vaca standards. Moreover,
the Courts below have now hypocritically applied the
contract exhaustion doctrine against plaintiff because the
strict contract deadlines were violated, but yet excused
the Union for its violation of the strict contract deadlines
under the exact same set of facts.?
This is a case that is deserving of this Honorable
Court’s attention.
I.
A UNION VIOLATES ITS DUTY OF FAIR REPRESENTA-
TION WHEN IT HAS THE EXCLUSIVE CONTRACTUAL
AND LEGAL AUTHORITY TO PROCESS AN EMPLOYEE’S
GRIEVANCE TO THE HIGHER STEPS OF THE GRIEV-
ANCE PROCEDURE AND WHEN IT IS GUILTY OF PRO-
CEDURAL NEGLIGENCE IN FAILING TO TAKE A BASIC
AND REQUIRED STEP IN THE GRIEVANCE PROCEDURE
AND WHEN THE UNION HAS MADE NO DECISION AS
TO THE MERITS OF THE EMPLOYEE’S GRIEVANCE AND
WHEN THE GRIEVANCE IS MERITORIOUS AND IN-
VOLVES IMPORTANT INDIVIDUAL RIGHTS.
Prior to Vaca v Sipes, 386 US 171 (1967), this Court
established the standards for union conduct toward
employees in cases involving claims of discrimination in
contract negotiations or contract modifications. Steele v
Louisville & Nashville R.R., 323 US 192 (1944), (racial
discrimination in contract negotiations is imper-
missible); Ford Motor Co. v Huffman, 345 US 330 (1953);
Humphrey v Moore, 375 US 335 (1964). (Honest and
2 In footnote 4, the District Judge stated:
“The unions never presented any evidence that the plant
practice ‘extended’ the exchange deadline more than a few
days. In this case, William Moon did not try to exchange
plaintiff's statement with GM officials until three weeks after
it was due. Thus, even if plant practice softened the strict
timeliness requirement to a certain degree, plaintiff's
grievance was still untimely.” 519 F Supp at 897, fn. 4.
10
good faith union negotiations or contract modi-
fications without any intent to discriminate against an
affected group is permissible.)
In Vaca, supra, this Court for the first time dealt with
the standards for union conduct in contract ad-
ministration in handling employee grievances. Vaca
dealt with an honest and good faith decision by the
Union, albeit allegedly wrong, on the merits of an
employee's grievance. In that situation, the Court stated
that the standards for violation of the duty of fair
representation are whether or not ‘a Union’s conduct
towards a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.’’ 386 US at
190.3
The Court also adopted the standard that a union
violates its duty of fair representation if it processes a
meritorious grievance in a perfunctory fashion. 386 US at
191.
The Oxford English Dictionary (Oxford University
Press, Oxford, Eng., 1978) defines perfunctory as follows:
“Done in a careless or superficial manner. Slight.
Careless, negligent, lit. characteristic of one
whose aim is to get through or get rid of the
matter.”
> The overwhelming majority of the Circuit Courts of Appeals
have held that Vaca represents a calculated expansion of the standards
in judging a union’s conduct toward an employee. lst Circuit,
DeArrovo v Sindicato DeTrabajadores Packing House, AFL-CIO, 425 F 2d
281 (1st Cir, 1970), cert. den. 400 US 877 (1970); 3rd Circuit, Smith v
Pittsburgh Gage & Supply Co, 464 F 2d 870 (3rd Cir, 1972); 4th Circuit,
Griffin vy UAW, 469 F 2d 181 (4th Cir, 1972); 6th Circuit, Ruzicka; 8th
Circuit, Minnis v UAW, 531 F 2d 850 (8th Cir, 1975); 9th Circuit,
Berrault v Local 40, 501 F 2d 258 (9th Cir, 1974); and Retana v Elevator
Overators Union Local 14, 453 F 2d 1018, 1023, n. 8 (9th Cir, 1972).
The 7th Circuit has recently stubbornly insisted that intentional
misconduct is a necessary element of an unfair representation case.
Hoffman v Lonza, 658 F 2d 519 (7th Cir, 1981); Dober v Roadway
Express, — F 2d —, 113 L.R.R.M. 2594 (7th Cir, May, 1983). But, cf.
Barton Brands v NLRB, 529 F 2d 793 (7th Cir, 1976).
11
Plaintiff contends that this Court meant exactly what
the Dictionary says. Specifically, in a perfunctory
processing case, such as the case at bar, a union may be
found guilty of unfair representation when it negligently
processes an employee's grievance.
A claim of perfunctory processing involves contract
administration in the handling of employee grievances
when the union’s substantive decision on the merits of
the grievance is not at issue. It involves situations in
which the processing of the grievance and the
procedures employed by the union to process the
grievance are being challenged.
There is almost hopeless confusion in the Courts in
developing a standard for perfunctory processing
situations. The Ruzicka Trilogy is a good example of that
confusion.
In Ruzicka I, the Court found the Union guilty of
procedural negligence in handling plaintiff's discharge
grievance. The Union conduct was ‘’a clear example of
arbitrary or perfunctory handling of a grievance. . .’’ 523
F 2d at 310. However, Judge McCree, in the concurring
opinion, disagreed. He stated that the Union conduct
was not arbitrary or perfunctory because the Union
conduct in the case was unintentional. Nevertheless,
according to Judge McCree, the Union should be
responsible for ‘‘its sheer neglect to file a paper that the
employee is prevented by law [from filing for himself
. . . because of] the magnitude of the injury ... ” 523 F
2d at 316.
On rehearing, the Court stated that the conduct of the
Union was arbitrary. There was no mention of
perfunctory conduct. 528 F 2d 912 (6th Cir, 1975).
In Ruzicka II, the Court explained that the ‘key to
Ruzicka I’’ was that ‘‘unexplained union inaction”
violated the arbitrary conduct standard. 649 F 2d at 1211.
12
Consequently, under Ruzicka Il, a “justification or
excuse” could be offered by the union to explain its
inaction.
In Ruzicka IJ, the Court then analyzed the situation as
one of gross negligence because there was no
explanation for the union conduct, but ordinary
negligence if there were an explanation for the conduc
The District Judge followed this analysis and found that
the Union representative did not believe the contract
deadlines were important, at least in part, because of the
existence of a past practice of customary non-
enforcement of contract deadlines. Under this analysis,
the Union’s conduct was not gross negligence. Because
there was some explanation for it, the Union conduct
was only ordinary negligence.
The Sixth Circuit analysis in Ruzicka III is faulty. The
distinction between “unexplained union inaction” and
“explained union inaction’ is meaningless when it does
not represent a decision on the merits of the grievance.
What difference does it make if the union representative
offers that he forgot as the explanation for his failure to
act, or if the union representative offers no explanation
for his failure to act? The magnitude of the harm to the
employee is the same in any event.
The distinction between gross negligence and ordinary
negligence is an unacceptable standard, at least when the
negligence is unrelated to the union’s decision on the
merits of the grievance. For example, is the union guilty
of gross negligence if a union representative neglected to
file a timely submission because he was drunk in a bar?
Or is the union guilty of only ordinary negligence if the
union representative forgot to make a timely submission
because he was on vacation with his family?
Moreover, the reasoning in Ruzicka III is contrary to a
logical extension of its facts. There was an established
past practice of customary non-enforcement of the
13
contract deadlines. Thus, the Union had more time to
exchange its statement because of the past practice.*
When the Union neglected to exchange its statement
within the contractual deadline because of reliance on
the past practice, why did the Union not attempt to
exchange its statement within the period permitted by
the past practice? In sum, the existence of a past practice
makes the union conduct, ignoring both the contractual
deadline and the deadline established by past practice,
even more egregious.
The Ruzicka perfunctory processing line of cases is
different from those cases involving challenges to the
union’s good faith and reasoned interpretation of the
collective bargaining agreement; Cronin v Sears, 588 F 2d
616 (8th Cir, 1978); Tedford v Peabody Coal Co, 533 F 2d
952 (5th Cir, 1976) or cases involving challenges to the
union’s good faith efforts in contract negotiations;
Humphrey v Moore, 375 US 335 (1964); Ryan v Printing
Pressmans Union, 590 F 2d 451 (2d Cir, 1979); Ekas v
Carling National Breweries, Inc, 602 F 2d 664 (4th Cir,
1979), cert. den. 444 US 1017 (1980); or involving
challenges to the union’s good faith and reasoned
determination of the merits of the employee’s grievance.
Vaca v Sipes, 386 US 171 (1967); Dill v Greyhound, 435 F
2d 231 (6th Cir, 1970), cert. den. 402 US 952 (1971);
Welshons v Sivyer Steel Corp, 674 F 2d 748 (8th Cir, 1982);
Bazarte v United Transportation Union, 429 F 2d 868 (3rd
Cir, 1970).
* In footnote 4, the District Judge ignored this logical conclusion.
Because the contract deadlines were waived by established past
practice, the timeliness of the grievance necessarily was determined
by that past practice. As noted by the District Judge, the arbitrator
should have determined whether or not the grievance was timely
under these circumstances. The Judge stated: “As I now interpret
Count I of the Unions’ cross-claim, G.M. should have been compelled
to arbitrate the issue of the effect of plant practice on the
enforceability of the exchange deadline.” 519 F Supp at 897, fn. 4.
14
The Ruzicka perfunctory processing line of cases deals
with a particular type of union conduct. In those cases,
the union has failed to file the proper papers in a timely
manner; Ruzicka v General Motors, supra; Foust v IBEW,
572 F 2d 710 (10th Cir, 1978), rev'd on other grounds 442
US 42 (1979); DeArroyo v Sindicato DeTrabajadores Packing
House, 425 F 2d 281 (1st Cir, 1970), cert. den. 400 US 877
(1970); Hoffman v Lonza, 658 F 2d 519 (7th Cir, 1981); Coe
v Rubber Workers, 571 F 2d 1349 (5th Cir, 1978), or the
union has failed to advise the employee about the
procedures; Robesky v Quantas Empire Airways, 573 F 2d
1082 (9th Cir, 1978); Minnis v United Auto Workers, 531 F
2d 850 (8th Cir, 1975); but see Stephens v Postmaster
General, 623 F 2d 594 (9th Cir, 1980), or the union has
failed to conduct a minimal investigation of the
grievance; Hines v Anchor Motor Freight, 506 F 2d 1153
(6th Cir, 1974) rev'd in part 424 US 554 (1976); Segarra v
Sea Land Service Inc, 581 F 2d 291 (1st Cir, 1978); Wyatt v
Interstate & Ocean Transport Co, 623 F 2d 888 (4th Cir,
1980); Hughes v International Brotherhood of Teamsters,
Local 683, 554 F 2d 365 (9th Cir, 1977), or the union has
simply been ignorant of its minimal responsibilities as a
Statutory bargaining agent; Milstead v International
Brotherhood of Teamsters, Local 957, 580 F 2d 232 (6th Cir,
1978); Williams v Teamsters, 625 F 2d 138 (6th Cir, 1980);
Denver Stereotypers Union v NLRB, 623 F 2d 134 (10th Cir,
1980).
Plaintiff submits that when union procedures are at
issue, and not the union decision on the merits of the
grievance, the concept of procedural negligence is an
appropriate standard to determine whether or not the
union adequately processed a meritorious grievance. The
adequacy of the union procedures and the exercise of
due care under the circumstances are the key issues.
Moreover, the reasonableness of the union action or
inaction must be considered in light of the harm to the
employee.
15
This Court has examined the adequacy of procedural
safeguards afforded an employee. In Humphrey v Moore,
375 US 335 (1963), this Court considered whether or not
an employee was granted a ‘fair hearing’’ in
determining whether the Union fulfilled its duty of fair
representation. Likewise, in Hines v Anchor Motor
Freight, 424 US 554 (1976) this Court vacated an
arbitration award because of Union conduct at the
hearing.*®
Procedural safeguards at the early steps of a grievance
procedure should not be any less exacting than the
procedural safeguards required at an arbitration hearing.
Second guessing of the union is not involved in a
typical perfunctory processing situation. In Ruzicka, the
Union never made a decision on the merits of the
grievance. For example, where the union has failed to
investigate the grievance, the issue is not the substantive
union decision on the merits of the grievance, with or
without a proper investigation. The issue is the standard
of care in investigating the grievance and the union’s
exercise of due care in light of the standard.
Negligence is a perfectly acceptable standard under
federal labor policy for determining the adequacy of a
union’s procedural handling of a meritorious grievance
involving important individual rights. After all, damages
in a duty of fair representation suit are based on fault
principles. Vaca v Sipes, supra at 197; Bowen v United
States Postal Service, supra.
Plaintiff submits that this Court, in Vaca, adopted a
negligence standard when it accepted the proposition
that a union owes a duty to process meritorious
grievances in a non-perfunctory fashion. The lower
courts have repeatedly either misinterpreted, twisted, or
ignored this standard. This erroneous interpretation is
especially glaring in the case at bar.
$ See also Smith v Hussman Refrigerator Co, 619 F 2d 1229 (8th Cir,
1980) (failure to provide notice of the hearing).
16
II.
THE SIXTH CIRCUIT APPLIED AN INCORRECT LEGAL
STANDARD TO THE CLAIM THAT THE UNION ARBIT-
RARILY NEGLECTED TO TAKE A BASIC AND REQUIRED
STEP UNDER THE EXCLUSIVE GRIEVANCE AND ARBIT-
RATION PROCEDURES. THE MOTIVE OR INTENT
OF THE STATUTORY BARGAINING AGENT IN RELYING
ON A PAST PRACTICE OF CUSTOMARY NON-
ENFORCEMENT OF CONTRACT DEADLINES IS NOT
CONTROLLING. THE EMPLOYEE IS ENTITLED TO CHAL-
LENGE THE UNION DECISION IF IT IS WITHOUT A RA-
TIONAL BASIS AND IS AN UNREASONED DECISION
AND IS OTHERWISE TOO INSUBSTANTIAL TO SUPPORT
THE UNION ACTION.
The bargaining representative, Charles Panter,
neglected to file the Union statement. On this record, his
action was unintentional.
Moreover, the evidence established a past practice of
customary non-enforcement of contract deadlines. He
was aware of the past practice. He decided to rely upon
that past practice when he was handling plaintiff's
grievance.°®
In Ruzicka Ill, the Court rejected the position that in
order to satisfy the arbitrary conduct standard, the
Union's decision must be based on rational and relevant
factors. The Court indicated that the only issue was the
“motive or intent for the Union’s conduct... ” — F 2d
—, 113 L.R.R.M. 2562, 2563 (6th Cir, 1983).
“(T]he inquiry here is not whether the union
should have relied, or whether it was rational to
* There is literally only a scintilla of evidence to support these
facts. The union representative testified that he in fact, exchanged the
union statement. In 1973, the District Judge, based on a credibility
determination, rejected this testimony. However, he did testify that
he was not that concerned about contract deadlines. In that sense, we
will reluctantly accept as fact that he made a ‘decision’ to rely on the
past practice when he neglected to exchange the union statement
within the contract deadlines.
17
rely, but whether the actual, substantially
motivating reason for the union’s decision not to
timely present Ruzicka’s discharge grievance to
GM was its reliance on an established practice.”’
(Emphasis Added) Ruzicka v General Motors, — F
2d —, 113 L.R.R.M. at 2563.
Ruzicka III is in conflict with decisions from other
Courts of Appeals.
In the 9th Circuit, a union decision to withdraw the
employee's grievance and withhold that information
from her is determined by whether or not the decision is
without a rational basis or is an unreasoned decision.
Robesky v Quantas Empire Airways, 573 F 2d 1082 (9th
Cir, 1978). In the 10th Circuit, Foust v IBEW, 572 F 2d 710
(1978), rev. on other grounds, 442 US 42 (1979), arbitrary
conduct is defined as ‘‘an act not done according to
reason and judgment.” Id. at 714. The Fifth Circuit has
held that a union does not breach its duty if its decision
is a rational result of the consideration of ‘relevant,
permissible union factors which excludes the possibility
of it being based on motivation such as personal
animosity or political favoritism . . . ’’ Tedford v Peabody
Coal Co, 533 F 2d 952, 957 (5th Cir, 1976). The 7th Circuit
has held, in Baldini v Local 1095, UAW, 581 F 2d 145 (7th
Cir, 1978), that in order to avoid arbitrary conduct, a
union must ‘‘make an honest, informed and reasoned
decision not to proceed... ’’ Id. at 151. Finally, the 4th
Circuit, in Griffin v International Union, UAW, 469 F 2d
181 (4th Cir, 1982), stated that a union may ‘“‘handle the
grievance in a particular manner for a multitude of
reasons, but it may not do so without reason... ”’ Id. at
183.
In the case at bar, plaintiff challenged the Union
decision to rely upon the past practice when it handled
his grievance. The Union decision was not rational
because the Union statement was prepared and was
18
ready to be exchanged with the employer within the
contract deadline. This was not a soundly reasoned
decision because it was too risky in light of
management's dislike of the plaintiff. This was especially
true given the explicit language in the contract. The
plaintiff was never informed of either the past practice or
the Union's decision to rely upon the past practice and
ignore the contract deadline. The Union decision simply
does not exclude the possibility of it being based on
hostility.”
Lastly, the Union decision to ignore the contract
deadline and rely on the past practice was simply too
insubstantial a reason to justify the Union inaction.
There is, indeed, a considerable amount of confusion
in the lower courts concerning the application of the
arbitrary conduct standard. There is a division of
authority in the courts as to whether or not the arbitrary
conduct standard requires evidence of intentional
misconduct. There is a further division around whether
unintentional misconduct which substantially prejudices
an employee's grievance must nevertheless be rational
and based on a sound, reasoned union decision. This
Court should settle this critical issue of federal labor
policy.
The plaintiff maintains to this very day that the bargaining
representative, Charles Panter, failed to process the grievance for
deliberate and political reasons.
In any case, as noted above, the Union's decision to “rely was
totally unreasonable since it submitted the statement more than two
weeks after the extended period (established by the plant practice)
had run out. See, fn. 2, supra.
19
III.
THE PLAINTIFF HAS STANDING TO COMPEL EN-
FORCEMENT OF A FAVORABLE ARBITRATION AWARD
OBTAINED ON HIS BEHALF BY THE UNION. THE INTER-
ESTS OF THE PLAINTIFF ARE NOT ADVERSE TO THE
INTERESTS OF THE UNION IN ENFORCING THE ARBI-
TRATION AWARD. MOREOVER, UNLESS PLAINTIFF IS
PERMITTED STANDING TO ENFORCE THE ARBITRA-
TION AWARD, HE WILL SUFFER SUBSTANTIAL HARM.
The District Judge vacated the arbitration award. He
held that ‘‘[w]ithout the breach, there is no grievance to
arbitrate.’ 519 F Supp at 897.
The Union had sought enforcement of the award.
However, the Union did not appeal his decision.®
Consequently, the Sixth Circuit refused plaintiff
standing to enforce the arbitration award.
“An additional issue concerning the continuing
viability of an arbitration award, originally
litigated below as a union counterclaim against
GM, has not been appealed by the union and is
therefore not before this Court on review.”’ — F
2d —, 113 L.R.R.M. 2564.
This holding is in conflict with the Seventh Circuit
Opinion in F. W. Woolworth v IBT, Local 781, 629 F 2d
1204 (7th Cir, 1980). In Woolworth, the Court held that an
employee could enforce the collective bargaining
* The Union's position on whether or not the plaintiff could seek
judicial enforcement on the favorable arbitration award was outlined
on p. 7 of its Brief on Appeal in Ruzicka Ill.
We take no position on the merits of the issue in this Court
However, we hope that, if the Court addresses it, the result
will be consistent with the reigning decision in this area, F
WW. Woolworth Co v IBT Local 781, 629 F 2d 1204 (7th Cir,
1980), which held that grievants may only intervene in
arbitration proceedings, and their enforcement, if their
position is not contrary to that of the responsible union.”
20
agreement with his employer even though only the
union under the collective bargaining agreement could
invoke arbitration.
The Court in Woolworth adopted the following
standards to determine whether or not an employee may
enforce, in a judicial proceeding, a favorable arbitration
award obtained by his union.’
“The factors favoring intervention by the
employees in the instant case are: (1) the
employees are defending, not attacking, the
arbitration award, which stands as the
culmination of the contractual grievance
procedure, (2) the Union has taken a position in
the district court in defense of the award, (3) the
Union has not objected to the employees’
intervention or appeal and (4) in the absence of
intervention these employees lose what may be
their final day in court resulting in a sharply
focused perception of unfairness.’’ 629 F 2d at
1211.
% The Sixth Circuit in Ruzicka Ill completely failed in its
responsibilities to articulate a rationale for its position or articulate
any standards. This is especially irksome to plaintiff because the same
Court in Ruzicka I ordered arbitration on the union's cross-claim, but
not at the request of the plaintiff. Ruzicka, 523 F 2d at 315. Such an
order is unprecedented in an unfair representation case. It may be a
denial of due process since an employee under Vaca is entitled to a
judicial de*ermination of his claims. In any event, there are only two
possible bases for this holding in Ruzicka III. First, the District
Judge’s analysis that ‘without the breach there is no grievance to
arbitrate “’ 519 F Supp at 897. Second, there is no claim by the
plaintiff that the union was guilty of unfair representation by failing
to seek enforcement of the favorable arbitration award. However,
arbitration in the case at bar occurred during the course of a judicial
proceeding and was court ordered. In sum, the arbitration was not
the product of collective bargaining, but rather the product of a
lawsuit. Consequently, under either rationale, the plaintiff has
standing.
21
The Second Circuit holds that an employee has
standing to enforce a favorable arbitration award if there
is tangible injury, such as the loss of a job. Santos v
Carpenters District Council, 547 F 2d 197 (2nd Cir, 1977).
The Fifth Circuit holds that an employee lacks
standing to vacate an unfavorable arbitration award.
Acuff v United Paper Workers, 404 F 2d 169 (5th Cir, 1968).
Likewise, in the Ninth Circuit an employee lacks
standing to vacate an unfavorable arbitration award.
Andrus v Convoy Co, 480 F 2d 604 (9th Cir, 1973), cert.
den. 414 US 989 1°
Some courts have rejected a narrow view of an
employee's right to judicially enforce an arbitration
award. In Lee v Olin Mathieson Chem Corp, 271 F Supp
635 (D.C. Va, 1967) the Court permitted an employee suit
to enforce a favorable arbitration award even though
there was a disagreement between the union and
employer about the interpretation of the award and the
matter could not be settled in negotiations. The Court
focused on the harm to the employees.
‘© In a case involving uniquely personal rights, it is irrational and
illogical for a court to deny standing to an employee to vacate an
unfavorable arbitration award, but yet allow his union standing to
vacate the unfavorable arbitration award. The same standards for
standing should govern both employee and union. After all, such
suits to vacate an unfavorable arbitration award are governed by this
Court’s “hands off’’ policy announced in United Steelworkers of
America v Enterprise Wheel and Car Corp, 363 US 593 (1960). In
addition, such suits are governed by a short statute of limitations.
United Parcel Service v Mitchell, 451 US 56 (1981). At the very
minimum, by allowing an employee standing in a suit to vacate an
unfavorable arbitration award, this would substantially reduce the
number of unfair representation claims when there is little, if any,
evidence of unfair representation in the union’s conduct at the
arbitration hearing. The burden would not be great on the courts
After all, unlike a duty of fair representation claim, a court would
simply review the arbitration award and the collective bargaining
agreement under the appropriate standards. Allowing standing for
such an employee suit (to vacate an unfavorable arbitration award
involving uniquely personal nghts) would have less of an unsettling
effect on labor relations than allowing duty cf fair representation
suits. We recogruze that there may be other legal buses to deny such a
suit, but the lack of standing should not be one.
22
“[T]o deny the plaintiffs standing to enforce the
award under these circumstances where the
defendant union, by inaction has failed to act on
the award (sic) would render the award in such
cases useless.”’ 271 F Supp at 638.
Likewise, in Central Motor Express, Inc v Local 89, 407 F
Supp 1217 (W.D. Ky, 1975), the Court permitted the
employees to intervene in a suit brought by the union
against the employer to compel enforcement of an
arbitration award even though the interests of the union
were adverse to those of the employees.
On the other hand, some courts have narrowly focused
on the union’s role as the exclusive statutory
representative and have refused to allow the employees
standing in judicial proceedings when the validity of an
arbitration award is at issue. See, e.g., DeLorto v UPS,
401 F Supp 408 (D.C. Ma, 1975); Capobianco v Brinks, 543
F Supp 971 (E.D., NY, 1982); Hadaway v Mountainside
Transport, 104 L.R.R.M. 2279 (D.C., Md, 1980); Quimby v
TWA, 401 F Supp 137 (D.C. Pa, 1975).
In 1962, this Court held that employees have standing
under § 301(a) to seek judicial protection of individual
rights guaranteed under a collective bargaining
agreememt. Smith v Evening News Ass'n, 371 US 195
(1962). Indeed, § 301 contemplates suits by individual
employees ‘‘to vindicate ‘uniquely personal’ rights of
employees ... ” Hines v Anchor Motor Freight, Inc, 424
US 554, 562 (1976).
In the case at bar, the plaintiff's grievance, and
resulting arbitration award, involve uniquely personal
rights. It involves his job and his right to earn a living. It
involves his right to be free from unjust disciplinary
penalties.
23
A favorable arbitration award involving uniquely
personal interests is a vested right. The union has no
right to bargain it away. See, e.g., Price v International
Brotherhood of Teamsters, 457 F 2d 605 (3rd Cir, 1972);
Elgin, ] & E RY v Bosley, 325 US 711 (1945) aff. on reh. 327
US 661 (1946).
Obviously, without standing to enforce the favorable
arbitration award, the harm to plaintiff is substantial.
Indeed, without standing, everything is lost.
This Court has not yet determined the circumstances
under which an employee may seek judicial enforcement
of a favorable arbitration award obtained on his behalf
by the union. There is a wide range of opinion on this
issue. The issue is important to employers, unions and
employees. The issue should be settled.
IV.
THE ARBITRATION AWARD IS VALID BECAUSE GENER
L MOTORS REPUDIATED OR WAIVED THE CONTRACT
DEADLINE WHEN IT ESTABLISHED A PAST PRACTICE
WITH THE UNION OF NON-ENFORCEMENT OF CON-
TRACT DEADLINES. CONSEQUENTLY, GENERAL
MOTORS IS ESTOPPED FROM RELYING ON THE UN-
ION’S FAILURE TO TAKE A REQUIRED AND NECESSARY
STEP WITHIN THE CONTRACT DEADLINES UNDER THE
CONTRACTUAL GRIEVANCE AND ARBITRATION PRO-
CEDURES.
The District Judge found that General Motors and the
Union had established a past practice of customary
non-enforcement of contract deadlines. 86 L.R.R.M. at
2031. In Ruzicka III, the Court indicated that the
‘existence of a clear and definite practice of not insisting
on contractual deadlines when an extension was
requested has been the law of this case for over ten
years.’ _ F 2d at __, 113 L.R.R.M. at 2563.
24
The District Judge vacated the arbitration award
because he found there was no breach of the duty of fair
representation. 519 F Supp at 897. Such a result is based
upon a traditional approach to Vaca that an employer
may defend the contractual claim by asserting that the
employee has failed to exhaust the available remedies
under the exclusive grievance and arbitration pro-
cedures, at least until the employee proves unfair
representation.
Such an approach to the validity of the arbitration
award is absolutely contrary to the basis relied upon by
the District Judge and the Sixth Circuit to excuse the
Union's violation of its duty of fair representation.
Specifically, the Union’s violation was excused because
of customary non-enforcement of contract deadlines, but
yet those same contract deadlines were held against the
employee.'' If the union were excused from the contract
deadlines, the employee should also be excused from the
contract deadlines. !2
In the notorious footnote 4, the District Judge found that
plaintiff's grievance was not arbitrable because the Union’s attempt to
exchange the statement three weeks after the contract deadline was
untimely. He said the past practice did not “extend” the deadline this
far. This analysis is contradictory. The contract deadlines were not
enforced. They were waived by established past practice.
Consequently, the contract deadlines ceased to exist as a factor in
determining whether or not the grievance was timely. The timeliness
of the grievance may only be determined by reference to the past
Practice in the plant.
‘* The contract deadlines operated as follows: Under Paragraph
77 of the GM-UAW National Agreement, a grievance had to be filed
within three working days of the discharge. Local management was
then required to render a decision on the grievance within five
working days Then, under Paragraph 77, the Shop Committee was
required to appeal that decision within five working days. Finally,
under Step 3 of the grievance procedure, Paragraph 37, the exchange
of statements between management and the Union was required
within five working days from the date of the Notice of Unadjusted
Grievance. All of the deadlines could be extended by mutual
agreement in writing. However, under Paragraph 34, a grievance not
(Continued on following page)
25
A violation of the duty of fair representation is not the
only instance in which an employee may be excused
from exhausting contractual procedures. It is well
established that certain conduct of an employer may
constitute a repudiation of contractual procedures. Drake
Bakeries v Bakery Workers, 370 US 254, 260-263 (1962).
This Court in Vaca noted that an employee could be
excused from contractual exhaustion under other
circumstances.
“An obvious situation in which the employee
should not be limited to the exclusive remedial
procedures established by the contract occurs
when the conduct of the employer amounts to a
repudiation of those contractual procedures .. .
In such a situation (and there may, of course, be
others), an employer is estopped by his own
conduct to rely on the unexhausted grievance and
arbitration procedures as a defense to the
employee’s cause of action.”’ 386 US at 185.
In at least one case, a Court has held that an accepted
past practice in modification of the contract excuses an
employee from exhausting the grievance remedies
available to him under the contract. Riley v Letter
Carriers, Local 380, 493 F Supp 342 (D. NJ, 1980),
dismissed on other grounds, 668 F 2d 224 (3rd Cir, 1981).
In Riley, the union did not file a grievance on behalf of
the employee because of the existence of a past practice
with the employer of holding the grievance procedures
in abeyance.
(Continued from preceding page)
appealed from a decision at one step of the grievance procedure to the
next step was considered settled on the basis of the last decision
And, under Paragraph 53, such settlement was considered final and
binding on the Union, employer, and employee. When the Union
neglected to exchange the statement, the grievance was considered
“‘settled’’ and, by the operation of the contractual deadlines,
settlement was considered ‘‘final.”’
26
The circumstances under which an employee will be
excused from the exclusive grievance and arbitration
procedures in the absence of unfair representation is an
important question under the federal labor law. This
Court has never decided this issue.
Plaintiff has conclusively established that he was
subject to an unjust discharge in violation of the
contract. But yet, the Courts in Ruzicka have blindly
ignored the fact that the contract deadlines were waived
by past practice. Nevertheless, these Courts have
willingly excused the Union because those contract
deadlines were waived by the same past practice.
This is a terrible form of judicial hypocrisy and defeats
the very basic principle that individual rights in a
collective bargaining agreement can be judicially
protected.
V.
THE ARBITRATION AWARD IS VALID BECAUSE IT WAS
OBTAINED BY THE UNION IN ITS CLAIM TO COMPEL
ARBITRATION. UNDER FEDERAL LABOR POLICY,
THE UNTIMELINESS OF A GRIEVANCE IS WAIVED
WHENEVER, IN A DUTY OF FAIR REPRESENTATION
SUIT, AN ORDER IS OBTAINED COMPELLING ARBITRA-
TION OF THE EMPLOYEE’S GRIEVANCE AND CON-
SEQUENTLY, THE EMPLOYER IS ESTOPPED FROM AS-
SERTING UNTIMELINESS OF THE GRIEVANCE.
The Union sought in this suit to compel arbitration on
the plaintiff's grievance. In Ruzicka I, the Sixth Circuit
granted summary judgment on the Union’s cross-claim
for arbitration. 523 F 2d at 315.
This Court in Vaca stated that an order compelling
arbitration was an available remedy in a duty of fair
representation suit.
27
“Tt is true that the employee’s action is based on
the employer's alleged breach of contract plus the
union’s alleged failure to afford him his con-
tractual remedy of arbitration. For this reason, an
order compelling arbitration should be viewed as
one of the available remedies when a breach of
the union’s duty is proved.” Vaca, 386 US at 196.
This Court noted that “the arbitrable issues may be
substantially resolved in the course of trying the fair
representation controversy.’’ 386 US at 196. In that
situation, a Court could decide the contractual claim or
enter an order compelling arbitration.
However, this Court has never determined the
circumstances under which a union, in a duty of fair
representation suit, may obtain an order compelling
arbitration of the employee's grievance. Moreover, this
Court has never determined whether or not such an
order compelling arbitration operates to estop the
employer from asserting that the grievance is untimely
under the collective bargaining agreement.
Plaintiff submits that this Court in Vaca contemplated
and decided those issues in a situation in which the
employee obtains an order compelling arbitration. In
particular, when an employee obtains an order
compelling arbitration, there is a waiver of any
untimeliness of the employee’s grievance and the
employer is estopped from asserting that the grievance is
untimely under the grievance and arbitration procedures
of a collective bargaining agreement.
A simple example will illustrate this. An employee
files a duty of fair representation suit against the union
and employer after the union withdraws his grievance
without having submitted the grievance to arbitration.
Under the exclusive grievance and arbitration
procedures, the union's withdrawal of the grievance
constitutes a final and binding settlement of the
grievance on the employer, union and employee. The
28
grievance and arbitration procedures contain four steps,
the final step being binding arbitration, and timely filing
of papers is required in order to appeal to higher stages.
The employee establishes unfair representation and
seeks an order to compel arbitration. At that point, the
grievance under the procedures is untimely.
May the employer refuse to arbitrate because the
grievance is untimely? Or, if the grievance is arbitrated,
may the employer refuse to abide by an arbitration
award favorable to the employee because the grievance
was untimely and thus not arbitrable?
The answer under Vaca is that the employer may not
assert such a defense. Under such circumstances, the
failure to exhaust contract remedies in a timely manner is
not a defense to arbitration, nor an arbitration award.
Were it otherwise, an order to arbitrate, in all
probability, would never be an available remedy to an
employee.
A waiver of the arbitrable issue of the timeliness
operates because, under federal labor policy, Congress
never “intended to shield employers from the natural
consequences of their breaches of bargaining agreements
by wrongful union conduct in the enforcement of such
agreements.’’ Vaca, 386 US at 186.
Plaintiff submits that the arbitrable issue of the
timeliness of the grievance is also waived when the
union, in a duty of fair representation suit, obtains an
order compelling arbitration. A union, after a duty of fair
'* This Court in Vaca surely did not intend to restrict the
employee to a judicial determination on the contract claim rather than
arbitration. As noted in Ruzicka |, the employee may prefer
arbitration. An employee who, for example, shows up drunk on the
job may believe that an arbitrator, familiar with shop law, might be
better than a judge or a jury The point is, an employee can select a
remedy and, if he selects arbitration, there is an automatic waiver of
the issue of the timeliness of the grievance, at least in those instances
in which the grievance was settled short of arbitration and, when the
order is obtained, the grievance is obviously untimely under the
procedures
29
representation suit is filed, should be encouraged to seek
arbitration of the employee's grievance.
A duty of fair representation suit must be filed within
six months. DelCostello v International Brotherhood of
Teamsters, _. US —; 76 L Ed 2d 476 (1983). The union is
liable for back pay occurring after the normally
scheduled arbitration hearing date. Bowen v United States
Postal Service, __ US —; 74 L Ed 2d 402 (1983).
In the case at bar, arbitration was ordered when the
arbitrable issues were “substantially resolved.”’ An early
determination on the merits of plaintiff's discharge
grievance was to the benefit of all the parties.
In light of the recent decisions by this Court, unions
should have a great interest on seeking arbitration as
quickly as possible. Protracted litigation simply exposes
unions to greater liability. Consequently, this Court
should indicate that arbitration is an available remedy to
the union in a duty of fair representation suit whenever
the arbitrable issues are substantially resolved in the
course of litigating the fair representation claim against
the union.
In that instance, the employee should receive the
benefit of a favorable arbitration award even if it is later
determined in the litigation that the union did not
violate its duty. The employer should therefore be
estopped from raising the untimeliness of the grievance
as a defense to the favorable arbitration award."
'# In Ruzicka |, the Court ordered arbitration on both the
substantive and procedural aspects of plaintiff's grievance. 523 F 2d at
315. However, the Sixth Circuit's rationale in submitting the
procedural aspects of the grievance was eliminated by this Court's
opinion in Hines. Moreover, in Ruzicka |, the plaintiff had not yet
“proved” unfair representation. The Court reversed a Rule 41(b)
dismissal by the District Judge The plaintiff had only established a
prima facie case. Ruzicka |], 649 F 2d at 1209 Nevertheless, the Sixth
Circuit order compelling arbitration is valid on the theory that the
arbitrable issue of the timeliness of the grievance was substantially
resolved. Thus, the arbitration order and award remain valid
30
CONCLUSION
We respectfully submit that the rulings of the Sixth
Circuit below are internally inconsistent and contrary to
federal labor law and policy. The final disposition of the
case by the Court of Appeals represents a callous
indifference to the substantial and important individual
rights of the plaintiff. In depriving him of these rights,
which he has sought to enforce for twelve years, the
Court has shirked its responsibility to develop a sound,
reasoned labor law in accordance with the principles
enunciated by this Court.
In a broader sense, this case typifies the confusion and
uncertainty existing in all the Circuits with respect to
§ 301 fair representation cases. The diversity of judicial
Opinion in this area is the product, at least in part, of the
vagueness of the standards enunciated by this Court in
Vaca. Specifically, the standards of “arbitrary conduct’’
and ‘‘perfunctory processing’ have yielded wildly
inconsistent results in the lower courts. The present case
offers this Court a perfect opportunity to clear up this
confusion and provide some consistency and
predictability to this important area of federal labor law.
Respectfully submitted,
ROBERT J. DINGES (P 12799)
GLOTTA, ADELMAN, DINGES & RILEY, P.C.
1529 Broadway, Fourth Floor
Detroit, MI 48226-2174
(313) 964-1190
COUNSEL FOR PETITIONER
Dated: August 19, 1983
31
PETITIONER’S APPENDIX
MEMORANDUM OPINION
DENYING MOTION TO DISMISS
(United States District Court
Eastern District of Michigan
Southern Division)
(January 20, 1972)
(William Ruzicka, Plaintiff, vs. General Motors
Corporation, a Delaware corporation, International
Union, United Auto Workers (UAW), Local Union 166,
UAW, jointly and severally, Defendants — Civil Action
No. 36598)
Plaintiff in this action is William Ruzicka, a former
employee of General Motors Corporation. Defendants are
General Motors Corporation and the UAW. On March
31, 1970, he was fired by General Motors for being drunk
on the job and for using abusive language to a
management employee. Ruzicka filed a written
grievance, protesting his discharge, which proceeded
through steps one and two of the grievance procedure
but was not appealed to the third and fourth steps.
Plaintiff claims that he notified his Shop Committeeman
to continue processing his grievance but that he (a man
Panter, by name) failed to do so because of personal
hostility towards Ruzicka.
Plaintiff alleges that the decision of management was
contrary to consistent rulings of impartial umpires in
that the correct disciplinary action should have been a
temporary suspension. Therefore, plaintiff sued General
Motors Corporation for breach of contract, claiming an
improper discharge. He may maintain this, only if the
defendant UAW breached its duty of fair representation.
32
Plaintiff's suit against his union, the UAW, is based
on that claimed breach of the union’s duty of fair
representation. Vaca v. Sipes, 386 U.S. 171 (1967).
Plaintiff alleges that he had “lost favor” with his union
and that the local union’s Shop Committeeman was
hostile towards him and therefore failed to process
plaintiff's grievance to the third and fourth stages.
General Motors Corporation has filed a motion to
dismiss based on the fact that plaintiff failed to complete
the grievance procedures pursuant to the collective
bargaining agreement. S’nce plaintiff's claim against
General Motors is based on breach of contract, contract
law indicates that plaintiff must comply with the contract
terms.
_. [I]f the wrongfully discharged employee
himself 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 exhausted. Since the employee's
claim is based upon breach of the collective
bargaining agreement, he is bound by terms of
that agreement which govern the manner in
which contractual rights may be enforced. For
this reason, it is settled that the employee must at
least attempt to exhaust exclusive grievance and
arbitration procedures established by the
bargaining agreement.” Vaca v. Sipes, 386 U.S.
171, 184 (1967).
An exception to this rule arises if the union has sole
power to invoke the higher stages of the grievance
procedure, and the plaintiff (as is alleged here) is
prevented from exhausting grievance procedures by the
union’s wrongful refusal to process the grievance. Vaca
v. Sipes, supra at 185. The court further stated:
33
‘For these reasons, we think the wrongfully
discharged employee may bring an action against
his employer in the face of a defense based upon
the failure to exhaust contractual remedies,
provided the employee can prove that the union
as bargaining agent breached its duty of fair
representation in the handling of the employee's
grievance.” Supra at 186.
Thus the validity of defendant General Motors’ defense
of failure to complete the grievance procedures depends
upon whether the UAW breached its duty of fair
representation.
The rationale for permitting the plaintiff to proceed
where the union has breached its duty of fair
representation is that otherwise the employee is
remediless — abandoned by his union and fired by his
company. It does no injury to the company to allow him
to proceed, since plaintiff alleges that they have
discharged him wrongfully and that his failure to
perform his own contract obligations is not attributable
to him. Richardson v. Communications Workers of America,
267 F.Supp. 403 (D.Neb. 1967).
Thus plaintiff must be able to show first that the
defendant union breached its duty of fair representation.
In this district some cases indicate that plaintiff must
show that he has exhausted or attempted to exhaust his
internal remedies against the union before he can
proceed against it in court. In Harrington v. Chrysler
Corporation, 303 F.Supp. 495 (E.D. Mich. 1969, Kaess, J.),
plaintiff failed to completely exhaust his contract
grievance procedure and his intra-union appeal
procedure set forth in Article 32 of the UAW
Constitution. Judge Kaess stated:
34
“ ... plaintiff... sought redress only by means
of the grievance machinery set forth in the local
collective bargaining agreement between Local
Union No. 402 and Chrysler Corporation. He did
not avail himself of the intra-union appeal
procedures to challenge Local 412’s alleged
arbitrary action in refusing to represent the
plaintiff with respect to the grievance. The [UAW
Const.] require[s] the aggrieved member to
submit his appeal in writing within a specified
time period . . . and all remedies and appeals...
[must] be exhausted prior to [resort to court).
“Thus, based upon plaintiff's ... failure to
affirmatively show some action pursuant to the
intra-union appellate procedures, this court is
without authority to entertain the plaintiff's
action.’’ Supra at 497. (Emphasis added.)
See also Imbrunne v. Chrysler Corporation, — F.Supp. —
65 CCHLC § 11,745 (E.D. Mich., April 26, 1971, Civil
Action No. 36112). (Plaintiff's action barred because he
failed to exhaust his grievance procedure and the union's
action was not so arbitrary so as to constitute unfair
representation. )
Anderson v. Ford Motor Company, 319 F.Supp. 134 (E.D.
Mich. 1970), relies upon Bsharah v. Eltra Corporation, 394
F.2d 502, 503 (6th Cir. 1968), and the Circuit Court there
stated that where plaintiff ‘failed to allege or show any
attempt to initiate her intra-union remedies prescribed
by the [UAW Constitution and bylaws]... "’ it would
affirm the district court’s dismissal of her claim. Chief
Judge Freeman in Anderson, in reliance upon this
language, held that plaintiff employees must completely
exhaust their intra-union remedy before resort to federal
court. The above-mentioned district court cases are
35
uniform in their extension of the obligation to exhaust
intra-union remedies beyond that enunciated in the
decisions of the Sixth Circuit.
In the instant case, plaintiff Ruzicka has spent
approximately one year prior to suit in an attempt to
pursue his intra-union remedy. He is still attempting to
proceed within the union. While a _ privately
administered system for the redress of employee
grievances is an integral part of our national labor
relations policy of settling disputes without the necessity
of judicial resolution, it should not operate to deprive an
employee of his access to the federal courts under Section
301 (unless he has failed to substantially exhaust his
remedies under that system). I hold there has been
sufficient exhaustion in this case.
The UAW also argues in support of its motion that
plaintiff has not pleaded sufficient facts to establish that
the UAW acted in bad faith or with hostile or arbitrary
discrimination.
In Balowski v. International Union, 372 F.2d 829 (6th
Cir. 1967), the court stated:
“The allegations of a complaint alleging the
breach of a Union’s duty of fair representation
must contain more than ‘conclusory statements
alleging discrimination.’ In particular plaintiffs
must make a showing that the action or inaction
of the statutory representative complained of was
motivated by bad faith, for the gravamen of the
rule is ‘hostile discrimination.’ ” At 835.
In the instant case, plaintiff has made a sufficient
allegation of bad faith to comply with the Federal Rules
of Civil Procedure.
Ruzicka, before the commencement of this lawsuit,
brought charges against the union before the National
36
Labor Relations Board. On October 9, 1970, the Regional
Director refused to issue a complaint. In December this
refusal was affirmed by the General Counsel of the
National Labor Relations Board. There is no appeal,
either administrative or judicial, from such a decision.
United Electrical Contractors Ass'n. v. Ordman, 366 F.2d
776 (2nd Cir. 1966). The UAW argues that this refusal
should be res judicata or collaterally estop the plaintiff
from proceeding in this court
While the issue before this court is identical to that
before the National Labor Relations Board, it is clear that
res judicata does not attach to the refusal to issue a
complaint. The nature of such a decision is tentative. The
Board itself is not bound by such a decision. Maxwell Co
v. NLRB, 414 F.2d 477 (6th Cir. 1969). See also NLRB v.
Zimnox Coal Co., 336 F.2d 516 (6th Cir. 1964). The refusal
to issue a complaint is not res judicata, NLRB v. Baltimore
Transit Co., 140 F.2d 51 (4th Cir. 1944), cert. denied 321
U.S. 795 (1944), because it is not final. Furthermore, the
traditional elements of res judicata are not present. There
is no opportunity by the charging parties to actually
litigate the matter. Therefore, neither res judicata nor
collateral estoppel applies.
As to the final contention by the UAW concerning
Panter’s authority to act for the International Union, this
involves questions of fact so is best reserved for trial.
The motion to dismiss brought by defendant General
Motors is also dened for the above reasons. An
appropriate order may be presented.
s John Feikens
United States District Judge
Dated: January 19, 1972
Detroit, Michigan
37
MEMORANDUM OPINION AND ORDER DENYING
MOTIONS FOR SUMMARY JUDGMENT
(United States District Court
Eastern District of Michigan
Southern Division)
(April 25, 1973)
(William Ruzicka, Plaintiff, vs. General Motors
Corporation, a Delaware corporation; International
Union, United Auto Workers, (UAW); Local Union 166,
Jointly and Severally, Defendants — Civil Action No.
36598)
Defendant Unions (International Union, UAW, and
Local Union 166, UAW) and defendant General Motors
Corporation (General Motors) bring motions for
summary judgment against plaintiff, William Ruzicka.
Motions for summary judgment have also been brought
by each defendant against the other defendant. A
hearing was held on the motions brought by defendants
against the plaintiff. Argument on the motions between
defendants has been adjourned until the close of
plaintiff's case at trial.
This court must now determine whether Ruzicka has
had ‘‘his day in court’’ in the union forums. If so,
summary judgment should be granted.
It is noteworthy that all but one of the intra-union
hearings and decisions occurred prior to this court's
Opinion of January 20, 1972; the local union had
declined to hold a trial to decide the question of Panter’s
misconduct, the International Executive Board (IEB)
affirmed, but the Public Review Board (PRB) reversed
and ordered a trial. In that trial Panter was found ‘‘not
guilty’ and the IEB affirmed. On June 8, 1972, the PRB
dismissed the appeal from the IEB, stating that ‘under
the [UAW] Constitution no appeal from the verdict of
38
not guilty can be had.”’ The Board, however, did indicate
its agreements on the merits with the IEB decision.
At the trial, at which Panter was adjudicated ‘‘not
guilty’ of ‘consciously and purposely intending to allow
[Ruzicka’s] grievance to expire,’’ proof ‘‘beyond a
reasonable doubt’’ as a standard was employed.
Although Article 31 of the UAW Constitution prescribes
no particular standard of proof for a local union trial, the
IEB, in affirming the trial decision in this case, stated:
.. there is no evidence of any kind to indicate
bevond a reasonable doubt that [Panter’s] failure to
secure management's statements was motivated
by personal and political differences ... .”’
(Emphasis added. )
Thus, assuming arguendo that Panter’s “guilt” is a
dispositive issue in the instant case, plaintiff's burden of
proof in the union forum was much greater than it would
be in this court. Judicial deference to internal union
proceedings is commendable but inapplicable to the facts
at bar. In Charron v. American Federation of State, County
and Mumetpal Employees Union, 470 F.2d 156 (6th Cir.
1972), the plaintiff had been discharged by his union; in
Vestal v. Hoffa, 451 F.2d 706 (6th Cir. 1971), the dispute
was over interpretation of the union constitution. Both
the Vestal and Charron cases arose under the Labor
Management Reporting and Disclosure Act of 1959 (29
U.S.C. §§ 401 et seq.). This Act expressly defines what is
an adequate union disciplinary proceeding. 29 U.S.C.
§ 411(a)(5). The instant case arises under the Labor
Management Relations Act of 1947 (29 U.S.C. §§ 141 et
seg.) Where, as here, plaintiff's burden of proof was
heavier in the union forum than in the federal courts,
this court does not believe that deference to the internal
union adjudication is required. On the facts and the law,
the Charron and Vestal cases are distinguishable, and this
court declines to follow them here.
39
The unions’ remaining grounds for summary
judgment are without merit. First, defendant unions
now express a willingness to press Ruzicka’s claim and
say only General Motors’ refusal bars this alleged
remedy. Thus, the unions contend they cannot be
considered wrongdoers and must be dismissed out of the
case. This union attitude was manifest well before this
court’s January 1972 Opinion. More important, it cannot
be said that, as a matter of law, the present union
position purges the unions of their alleged misconduct
which began shortly after Ruzicka’s discharge in March
1970. The unions’ argument is best made to the trier of
fact, for the jury must “apportion liability between the
employer and the union according to the damage caused
by the fault of each.” Vaca v. Sipes, 386 U.S. 171, 197
(1967).
The unions’ argument that Panter acted beyond the
scope ofshis authority thus obviating any union
misconduct must also be rejected. As this court said in
its January 20, 1972, Opinion: ‘’Panter’s authority to act
for the International Union, ... involves questions of
fact ... best reserved for trial.’ The unions say that
since this court’s decision, Ruzicka stated in deposition
that Panter ‘‘acted contrary to [his] duties and authority
as unit chairman” and that this statement is binding
against Ruzicka. This court does not agree that such a
statement resolves the factual question of Panter’s
authority and as to this ground, therefore, the unions’
motion for summary judgment is also denied.
Similarly, this court has already decided in its January
20, 1972, Opinion that there has been sufficient
exhaustion and that the National Labor Relations Board’s
refusal to issue a complaint is no bar to this suit.
Finally, this court rejects the unions’ contention that
no genuine issue of material fact remains for decision. It
40
may be that the lengthy history of this matter has
eliminated many factual issues. The events surrounding
the discharge and the subsequent attempts to reverse
that decision have been thoroughly explored in
numerous depositions. Yet one fundamental fact remains
uncertain — whether Panter unfairly represented
Ruzicka because of personal hostility. Inferences could
be drawn from facts which might lead a jury to conclude
that Panter acted in bad faith when he failed to process
Ruzicka’s grievance. Circumstantial evidence might play
a role in the jury’s decision. In sum, notwithstanding the
affidavits and depositions presented to this court, it
cannot be said that, as a matter of law, the issue of bad
faith is resolved in defendants’ favor. See Neust v.
Westinghouse Alr Brake Co., 313 F.Supp. 1228 (S.D.IIl.
1970); Rivera v. NMU Pension & Welfare & Vacation Plan,
288 F.Supp. 874 (E.D.La. 1968).
General Motors’ motion for summary judgment must
also be denied. General Motors says plaintiff's allegation
that his punishment was unduly harsh is a claim for
which no relief may be granted, since the sanction of
discharge is clearly allowed under the national collective
bargaining agreement. But the question is whether
imposition of the discharge sanction in Ruzicka’s case
constituted a breach of contract by General Motors and
this must be decided on the particular facts of this case.
Accordingly, for the reasons set forth in this Opinion,
It Is Ordered that defendants’ motions for summary
judgment against plaintiff be, and the same are, hereby
Denied.
This case must be tried to a jury, and it will commence
on Tuesday, August 7, 1973, at 9:00 A.M.
s John Feikens
United States District Judge
Dated: Detroit, Michigan, April 25, 1973.
41
MEMORANDUM OPINION
(United States District Court
Eastern District of Michigan
Southern Division)
(November 21, 1973)
(William Ruzicka, Plaintiff, vs. General Motors
Corporation, a Delaware corporation; International
Union, United Automobile Workers (UAW); Local Union
166, UAW, Jointly and Severally, Defendants — Civil
Action No. 36598)
William Ruzicka filed this suit under Section 301 of the
Labor Management Relations Act of 1947, 29 U.S.C.
§ 185. Against the General Motors Corporation, the
plaintiff alleged wrongful discharge in violation of his
union agreement. Against the United Auto Workers, the
plaintiff alleged breach of its duty of fair representation
for failure to exchange the statements of unadjusted
grievance at the third step of the grievance procedure.
In a prior opinion,’ the court denied the defendants’
motions to dismiss. The court held that the plaintiff had
exhausted his contractual remedies, and the decision of
the National Labor Relations Board not to issue a
complaint was not res judicata with respect to the issues
raised in the complaint in this case.
In an unreported opinion dated April 25, 1973, the
court denied the defendants’ motions for summary
judgment. The court held that deference to intra-union
proceedings was inappropriate because in that
proceeding the plaintiff had to show the “guilt’’ beyond
a reasonable doubt of the union official (Charles Panter)
in mishandling his grievance, a standard higher than
that applicable in court. The court held that the plaintiff
1 Ruzicka v. General Motors Corp., 336 F.Supp. 842 (E.D. Mich.
1972).
42
must have his day to prove his allegation that Panter and
the union had breached the duty of fair representation in
the processing of his grievance.
Plaintiff has now presented his proof. Before the court
for decision are the defendants’ motions to dismiss
under Rule 41(b), Fed.R.Civ.P.
Rule 41(b) authorizes a court in a case such as this to
dismiss an action on the ground that upon the facts and
the law, the plaintiff has shown no right to relief. As
construed in Bach v. Friden Calculating Mach. Co., 148
F.2d 407 (6th Cir. 1945), this rule authorizes a court to
weigh the evidence and draw inferences therefrom. See
also, 5 Moore’s Federal Practice, © 41.13[4).
On March 31, 1970, Ruzicka was discharged by
General Motors for being intoxicated on the job and for
using threatening and abusive language to his superiors.
Ruzicka filed a timely grievance protesting his discharge
and the company responded with a timely paragraph 77
answer.* Later the union filed a timely ‘‘notice of
unadjusted grievance” to initiate the third step of the
grievance procedure. Paragraph 37 of the national
agreement then provides for a simultaneous exchange of
“statements of unadjusted grievance’. After two
mutually agreed upon extensions of the time allowed for
this in the national contract, an exchange date of May 5,
1970 was fixed.
However, no simultaneous exchange was ever made in
Ruzicka’s case. The exchange was to be made on behalf
of Ruzicka and the union by Charles Panter, chairman of
the shop committee, and on behalf of the company by
Ross Hagerman, supervisor of labor relations at
Ruzicka’s plant.
2 This has reference to paragraph 77 of the national agreement
then in force between the company and the union.
43
The witnesses disagreed in their testimony as to
whether Panter ever gave management the union
statement of unadjusted grievance. Both Hagerman and
Jerry Bennett, a labor analyst and subordinate to
Hagerman, testified that Panter never did make the
exchange. Hagerman also testified that it was the
practice to make a simultaneous exchange of the
Statements in his office, as required by the contract. If
one side was not prepared with its statement on an
exchange date, extensions of time it appeared were freely
granted. In fact such extensions were freely granted even
after an exchange date had passed. This testimony was
corroborated by William Moon, who succeeded Charles
Panter as chairman of the shop committee on May 17,
1970.
Panter, on the other hand, testified that he did give
the union’s statement of Ruzicka’s unadjusted grievance
to management during the first week in May, although
he did not remember the date.> He stated that the
common practice was for management to leave its
statement in his mailbox at the plant two to four days
after receipt of the union statement, to allow a period for
negotiating the grievance. Panter said he never saw
management's statement.
After Moon replaced Panter, and following general
review with Panter of the active grievance files, Moon
attempted to exchange the Ruzicka statement on May 26,
1970. This was rejected by management as untimely.
Thereafter Ruzicka learned that his grievance was dead.
> He said he had a specific recollection of this because an associate
of his read it aloud in the meeting at which he gave the statement to
management.
44
The court concludes that the weight of the evidence is
that Panter did not make the exchange. While he so
testified, there was substantial credible evidence to the
contrary. Hagerman and Bennett, the company
representatives involved in Ruzicka’s case, testified that
Panter never made the exchange. No union statement
was ever found in company files,* or in the files of the
international union. Of significance is the fact that
Moon, when he became shop committee chairman, had
the statement of unadjusted grievance (multiple copies)
and then tried to make the exchange.
The fact that Panter did not make the exchange,
standing alone, does not show breach of the union’s
duty of fair representation. The landmark decision
defining this duty is Vaca v. Sipes, 386 U.S. 171 (1967).
Therein it is stated at 177:
“It is now well established that, as the exclusive
bargaining representative of the employees in [a
particular] bargaining unit, the Union had a
statutory duty fairly to represent all of those
employees, both in its collective bargaining ...
and in its enforcement of the resulting collective
bargaining agreement... . Under this doctrine,
the exclusive agent’s statutory authority to
represent all members of a designated unit
includes a statutory obligation to serve the
interests of all members without hostility or
discrimination toward any, to exercise its
discretion with complete good faith and honesty,
and to avoid arbitrary conduct.” Vaca v. Sipes, 386
U.S. 171, 177 (1967).
* Also, only Panter testified that the practice was not to make
simultaneous exchanges. Hagerman, Bennett and Moon stated the
exchanges were simultaneous. This practice, coupled with the fact
that no management statement was ever given to the union, indicates
that no union statement was ever given to management.
45
The employee's right to fair representation does not
include an absolute right to have a grievance taken to
arbitration, even if it is ultimately shown to be
meritorious. If the union’s conduct is not improperly
motivated and is within the bounds of rationality, the
fact that it may ‘‘unfairly’’ work a hardship on one
employee is not enough to require condemnation. The
duty of fair representation is breached only when the
union’s conduct is ‘arbitrary, discriminatory, or in bad
faith’. Vaca v. Sipes, supra, 386 U.S. at 190. There must
be ‘substantial evidence of fraud, deceitful action or
dishonest conduct’, Humphrey v. Moore, 375 U.S. 335,
348 (1964), or of ‘‘discrimination that is intentional,
severe, and unrelated to legitimate union objectives’’.
Amalgamated Ass'n of St., Elec. Ry. & Motor Coach
Employees v. Lockridge, 403 U.S. 274, 301 (1971). To
insure that the salutary purposes of the pre-emption
doctrine are not subverted by excluding unfair
representation suits from its purview, the distinction
“between honest, mistaken conduct, on the one hand,
and deliberate and severely hostile and irrational
treatment, on the other, needs strictly to be maintained”’.
Lockridge, supra, 403 U.S. at 301.
The court finds that the plaintiff has not shown a right
to relief under the standards announced in Vaca,
Humphrey and Lockridge. Plaintiff testified to some
hostility between himself and Panter. They had openly
disagreed in matters relating to the conduct of union
affairs, and they had run against each other in several
union elections.‘
* In addition, one Charles Brown testified that Panter told him in
a bar one night after Ruzicka’s discharge that as long as he (Panter)
was shop chairman, Ruzicka would not get back to work. The court is
inclined to give this testimony very little weight, primarily because of
the circumstances under which the incriminating remark was made.
46
Nonetheless, this evidence is insufficient and plaintiff
may not prevail. Plaintiff introduced no direct evidence
indicating that whatever hostility existed between them
tainted Panter’s processing of the grievance, and the
court, as the finder of facts, cannot infer the necessary
causation from the mere fact that there was some
hostility.®
Plaintiff asks the court to attach substantial weight to
the fact that Panter thought the grievance had some
merit. But, as noted above, Vaca teaches that an
employee does not have a right to have even meritorious
grievances pressed by the union. The employee's right is
the night to representation by his union free of bad faith,
arbitrariness or discrimination.
Thus the court makes the following findings of fact:
1. Panter did not make the exchange or unadjusted
grievance by May 5, 1970, the due date.
2. There existed, during the time when Ruzicka’s
grievance was in process, some hostility between Panter
and Ruzicka.
3. But there was no showing in the case that that
hostility tainted Panter’s processing of the grievance.
4. Panter neglected to file a timely statement of
unadjusted grievance.
The court makes the following conclusions of law:
1. Under the cases, in order to prove a breach of the
* The court noted with interest plaintiff's failure to call Panter as a
witness to find out what effect, if any, the hostility had on his
processing of the grievance. Panter was called at the direction of the
court.
47
duty of fair representation, the plaintiff must show that
the union’s conduct was arbitrary, discriminatory or in
bad faith.
2. Mere hostility between the plaintiff and the union
official is insufficient to show a breach; the plaintiff must
show that the hostility tainted the official's conduct.
3. Accordingly, the court concludes that the
defendant union did not unfairly represent Ruzicka in
the proceedings.
A final word: William Ruzicka has now had his day
in court. It would have been better if he had been given
this opportunity at a much earlier time. No prior hearing
addressed this basic question: was he fairly dealt with
by his union? This court finds no breach by his union of
the duty of fair representation. If there was any
unfairness, it was that Ruzicka had to go to so many
other tribunals before he could get this basic question
answered. In the developing law of labor relations this
point must not be overlooked.
Plaintiff has failed to show a basis upon which relief
may be granted. Accordingly, his complaint must fail
and this action must be dismissed.
An appropriate order may be submitted.
s John Feikens
United States District Judge
Dated: Detroit, Michigan
November 21, 1973
48
OPINION
(United States Court of Appeals
for the Sixth Circuit)
(Decided and Filed September 23, 1975)
(William = Ruzicka, Plaintiff-Appellant, and
Cross-Appellee, v. General Motors Corporation, a
Delaware Corporation, International Union, UAW, and
Local Union 166, UAW, Defendants-Appellees, and
Cross-Appellants. Appeal from the United States District
Court for the Eastern District of Michigan, Southern
Division — Nos. 74-1939, 74-1940, 74-1941)
Before: Weick, Celebrezze, and McCree, Circuit
Judges.
Celebrezze, Circuit Judge, delivered the opinion of the
Court, in which Weick, Circuit Judge, joined. McCree,
Circuit Judge, (pp. 17-18) filed a separate concurring
opinion.
CELEBREZZE, Circuit Judge
We consider an appeal and two cross-appeals from a
District Court’s judgment that Appellee Unions did not
breach their duty of fair representation towards
Appellant, a former employee of Appellee General
Motors Corporation (GM). Appellant asks that this
conclusion be reversed and that his action against the
Unions and GM be reinstated. GM argues that
alternative grounds exist for dismissing it from the case.
The Unions also assert al- (2) ternative grounds for
dismissal and argue that their cross-claim to send
Appellant's grievance to arbitration should have been
granted. The arguments raise several significant issues
concerning an individual employee's right to fair
treatment from his Union, as well as the relationship of
arbitration procedures and judicial recourse for
aggrieved persons.
49
On March 31, 1970, Appellant William Ruzicka was
discharged for being intoxicated on the job and using
threatening and abusive language towards his superiors
at GM’s Willow Run Plan (sic) in Ypsilanti, Michigan.
Appellant had worked there for nearly eleven years and
had been actively involved in Union activities for much
of that time.
Appellant initiated the grievance process under the
National Agreement between GM and the United Auto
Workers by filing a timely grievance protesting his
discharge. He did not dispute the essential facts of
intoxication and abusive language, but argued that
discharge was an unduly harsh penalty which was
inconsistent with past decisions of umpires interpreting
the National Agreement. The Company completed the
second step of the grievance process by filing an answer
under Paragraph 77 of the National Agreement. The
Union began the third step by filing a ‘‘notice of
unadjusted grievance.’ To invoke arbitration, the Union
was required by Paragraph 37 to file a ‘‘statement of
unadjusted grievance” simultaneously with GM. The
District Court found that Local 166 never filed such a
statement, although it had sought and received two time
extensions to do so. After the due date for the statement
had passed, GM disclaimed further obligation under the
National Agreement.
Appellant immediately pursued his intra-Union
remedies under Article 31 of the UAW Constitution.
Appellant argued that Charles Panter, a Local 166 official,
had willfully failed to perform his duty in failing to file
the required statement. A trial before a Local 166
Committee resulted in a finding that Panter had been
negligent but not guilty of willful inaction. Appeals to
higher levels failed.
30
(3) Appellant also filed charges with the National
Labor Relations Board, which investigated but dismissed
them. ;
Appellant instituted further intra-Union ach griest
Local 166 for wrongful processing of his grievance, but
this action was unsuccessful at the Local level. An appeal
to higher levels was stayed pending resolution of a
policy grievance that Panter’s successor at Local 166 had
filed. The policy grievance, which requested GM's
consideration of Appellant's grievance despite the
procedural problem, was withdrawn by Local 166 on
April 24, 1971.
Rather than appeal the adverse decision on Local 166's
processing of the grievance to the UAW’s International
Executive Board, Appellant filed a complaint in federal
court on June 3, 1971. He alleged that Panter’s personal
“hostility” towards him had caused Panter not to file the
statement of unadjusted grievance. He asserted that both
the Local and International Unions had thus given him
unfair representation, and he alleged that GM's
discharge was wrongful and that GM had conspired to
discharge him because of his Union activities.
The Unions filed a cross-claim against GM, seeking
that the dispute be ordered to arbitration. After denying
various pre-trial motions, the District Court conducted a
hearing limited to the question of unfair representation.
It concluded that there was no unfair representation
because Panter had merely ‘‘neglected’’ to file the
required statement. The Court reasoned, ‘Mere hostility
between the plaintiff and the union official is insufficient
to show a breach [of the duty of fair representation under
29 U.S.C. § 157 (1970)]; the plaintiff must show that the
hostility tainted the official's conduct.” Since ‘there was
no showing in the case that hostility tainted Panter's
processing of the grievance,’ Appellant's complaint was
dismissed, along with the Unions’ cross-claim.
51
We will first consider the question of unfair
representation, for if the District Court’s conclusion was
correct, the action against both the Unions and GM must
fail. See Vaca v. Sipes, (4) 386 U.S. 171 (1967). If the
District Court erred, there remain for consideration the
Unions’ and GM’s arguments that alternative grounds
exist for dismissal. Finally, we must address the Unions’
contention that their cross-claim to have Appellant's
grievance ordered to arbitration was wrongfully
dismissed.
Proof of unfair representation by a Union depends on
a showing that “a union’s conduct toward a member of
the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.”” Vaca v. Sipes, 386 U.S.
171, 190 (1967). A review of Appellant's complaint and
the facts developed at trial convince us that Appellant
did not prove that officials of Appellee International
Union had acted arbitrarily, discriminatorily, or in bad
faith. In Hines v. Local 377, 506 F.2d 1153, 1157 (6th Cir.
1974), cert. granted and limited to other ground, 43
U.S.L.W. 3571 (Apr. 21, 1975), we stated:
There was no claim that the local union was
acting for or at the direction of the International,
and appellant Hines, when asked on deposition
what steps the International failed to take in
investigating the company’s charges replied: “'I
don’t know of any steps that they should or
should not have taken.’’ Since there was no
genuine issue as to a material fact about the
conduct of the International Union, the grant of
summary judgment was proper.
The Hines reasoning applies here, and we affirm the
District Court's finding of no unfair representation by
the International Union. We turn now to consideration of
the liability, if any, of Local 166.
52
As discussed above, the District Court concluded that
Local 166 had not unfairly represented Appellant because
Agent Panter had merely ‘‘neglected”’ to file the required
Statement of Unadjusted Grievance and had not acted in
bad faith. Appellee Local urges that this conclusion be
upheld, asserting (5) that bad faith is an essential
element of any claim of unfair representation.
We do not find the duty of fair representation so
limited. In Vaca v. Sipes, 386 U.S. 171, 190 (1967), the
Supreme Court held that union actions which are
“arbitrary, discriminatory, or in bad faith’’ (emphasis
added) could establish a breach of the duty of fair
representation. As we held in St. Clair v. Local 515, 422
F.2d 128, 130 (6th Cir. 1969),
The phrase ‘‘fair representation’ is something
of a term of art, and the standards by which we
are bound have not been set down explicitly in a
code. However, the Supreme Court has spoken
clearly enough to guide us here. See Vaca v.
Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842
(1967). The Court there held that the duty of fair
representation does not require a union to
exhaust every theoretically available procedure
simply on the demand of a union member. 386
U.S. at 192. ... However, the ignoring or the
perfunctory processing of a grievance may violate
the duty of fair representation. Vaca v. Sipes, 386
U.S. at 194,
We agree with the Fourth Circuit’s analysis of the
three-pronged standard established in Vaca for
determining whether a union has unfairly represented
on (sic) of its members:
A union must conform its behavior to each of
these three separate standards. First, it must treat
53
all factions and segments of its membership
without hostility or discrimination. Next, the
broad discretion of the union in asserting the
rights of its individual members must be
exercised in complete good faith and honesty.
Finally, the union must avoid arbitrary conduct.
Each of these requirements represents a distinct
and separate obligation, the breach of which may
constitute the basis for civil action,
Griffin v. International Union of United Automobile
Workers, 469 F.2d 181, 183 (4th Cir. 1974). See also De
Arroyo v. (6) Sindicato De Trabajadores Packinghouse,
AFL-CIO, 452 F.2d 281 (1st Cir.) cert. dented, 400 U.S. 877
(1970).?
We believe that the District Court misread Vaca when
it held that “bad faith” must be read into the separate
and independent standards of ‘‘arbitrary’’ or
‘discriminatory’ treatment. Union action which is
arbitrary or discriminatory need not be motivated by bad
faith to amount to unfair representation.
In the instant case Local 166 officials discussed
Appellant’s grievance among themselves and with GM
personnel, but inexplicably neglected to take Appellant's
grievance to the third stage of processing by not filing a
Statement of Unadjusted Grievance with the appropriate
GM official. Having sought and been granted two
extensions of time to file the Statement and at no time
' De Arroyo is parallel to the instant case. There, seven employees
were discharged allegedly because of automation but in violation of
seniority provisions. Their union failed to press their grievance out of
an honestly mistaken belief that certain NLRB relief extended to
them. The First Circuit found that good-faith mistaken belief was an
unacceptable excuse for not pursuing the grievances and amounted to
arbitrary and perfunctory processing, which Vaca explicitly stated
was one ground for a finding of unfair representation.
54
having decided that Appellant’s claim was without
merit, the Local allowed the final deadline to pass
without filing the Statement or requesting a further
extension. At this point the Local did not inform either
Appellant or GM that it had decided either to continue or
to stop processing Appellant’s grievance. Such negligent
handling of the grievance, unrelated as it was to the
merits of Appellant’s case, amounts to unfair
representation. It is a clear example of arbitrary and
perfunctory handling of a grievance.
The Unions argue that Dill v. Greyhound Corp., 435
F.2d 231, 238 (6th Cir. 1970), cert. denied, 402 U.S. 952
(1971), stands for the proposition that bad faith is an
essential element of any claim of unfair representation.
Dill held that bad faith was required to support a claim
of unfair representation where the union in question had
made a decision that the (7) individual’s grievance was
without merit. In Dill we held that the interpretation by
the company and union of the collective bargaining
agreement was reasonable, so that refusing to invoke
arbitration of Dill’s grievance was a legitimate and
proper way for the union to reject his view of the union’s
contract with the company. We do not deviate from our
holding in Dill to conclude that when a union makes no
decision as to the merit of an individual’s grievance but
merely allowsit to expire by negligently failing to take a
basic and required step towards resolving it, the union
has acted arbitrarily and is liable for a breach of its duty
of fair representation. As the Vaca Court stated,
[A] union may not arbitrarily ignore a meritorious
grievance or process it in perfunctory fashion.
In administering the grievance and arbitration
machinery as a statutory agent of the employees,
a union must, in good faith and in a nonarbitrary
55
manner, make decisions as to the merits of
particular grievances.
The Union made no decision as to the merits of
Appellant’s grievance, but merely allowed it to expire
out of negligent and perfunctory handling. Thus, we
must reverse the District Court’s conclusion that Local
166 did not unfairly represent Appellant.
Local 166 argues through its cross-appeal that it should
have been dismissed from the case for four alternative
reasons.
First, it contends that Appellant should be collaterally
estopped from pursuing his action because an
intra-Union forum had decided his case adversely to
him.
A Trial Committee of Local 166, to which Appellant
took his case against Panter under Article 31 of the UAW
Constitution, decided that Panter was not guilty of
“consciously and purposely intending to allow a
grievance to expire.’’ The (8) International Union’s
Appeals Committee agreed with this conclusion, stating,
[T]here is no evidence of any kind to indicate
beyond a reasonable doubt that [Panter’s] failure
to secure management's Statements was moti-
vated by personal and political differences over
the years between him and [Appellant].
The UAW’s Public Review Board, which sustained the
International Executive Board’s affirmance of its Appeals
Committee, noted that the only issue before Local 166’s
Trial Committee
was whether Mr. Panter intentionally let the
grievance fail and in so doing was motivated by
2 386 US. at 191, 194.
56
political considerations; the issue of his negli-
gence or lack thereof was irrelevant.
The District Court held in a pre-trial order that the
Trial Committee’s decision did not collaterally estop
Appellant from arguing in federal court that Panter had
acted out of personal hostility in not filing a Statement of
Unadjusted Grievance, in view of the ‘‘beyond a
reasonable doubt’”’ standard which prevailed before the
forum. We agree with the District Court.
Furthermore, in view of our holding it is clear that the
issue of Panter’s negligence was not resolved adversely
to Appellant by the Trial Committee, but that its
decision supports the District Court’s conclusion that
Panter ‘‘neglected”’ to file the required Statement. Local
166’s argument in this respect must, therefore, fail.’
Second, Local 166 argues that Appellant failed to
exhaust his intra-Union remedies and under Bsharah v.
Eltra Corp., 394 F.2d 502 (6th Cir. 1968), should be barred
from taking his (9) case to court. Specifically, the Local
contends that Appellant should have appealed the
adverse decision of the Local’s rejection of his
intra-Union claim that it had wrongfully processed his
grievance.
For a period of 27 months, from March 1970 through
June 1972, Appellant sought intra-Union relief against
Local 166. We agree with the District Court that this was
sufficient exhaustion of intra-Union remedies to permit
it to hear his case. In Bsharah we affirmed the grant of
summary judgment against an employee who had “failed
’ We need not address the problem of when collateral estoppel
applies to intra-Union decisions when the adversely affected member
alleges in court that the Union acted in breach of its duty of fair
representation
-——_
o/
to allege or show any attempt to initiate her intra-Union
remedies prescribed by the constitution and by-laws of
the International Union.”’ 394 F.2d at 503. The reason for
this requirement is that intra-Union remedies are part
and parcel of the industrial in-house procedure for
settling labor disputes. The primary benefit of requiring
initial submission of employee complaints against a
union that refuses to help process a grievance against a
company is that internal machinery can settle difficulties
short of court action. Thus, federal policy requires
“staying the hand of ‘judicial interference with the
internal affairs of a labor organization until it has had at
least some opportunity to resolve disputes concerning its
own internal affairs.’ ’’ Ime! v. Zohn Mfg. Co., 481 F.2d
181, 183 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974),
quoting Brady v. Trans-World Airlines, 401 F.2d 87, 104
(3rd Cir. 1968), cert. denied, U.S. 1048 (1969).
Appellant’s diligent processing of his complaint
through 27 months of intra-Union proceedings is far
more than “at least some opportunity’’ for Local 166 to
resolve its dispute with him. The requirement of
exhaustion of intra-Union remedies is bottomed on the
hope that such procedures will quickly resolve disputes
without the delay inherent in the judicial process and
with the aid of persons experienced at resolving
member-union conflicts short of a full-blown judicial
proceeding. When that hope has failed, however, the
member is not barred from proceeding to federal court
with a claim of unfair representation. To conclude
otherwise would allow a union to prevent any (10) claim
against it from reaching the stage of litigation by forcing
aggneved members through endless stages of review.
Third, Local 166 maintains that Panter’s inaction in
failing to file the required Statement was beyond his
authority under Union rules, so that it is not liable for
his negligence.
58
Panter was Chairman of the Shop Committe of Local
166, and it was his responsibility to file Statements of
Unadjusted Grievance with GM officials. His action or
inaction in that job was clearly attributable to his
principal, Local 166. Barefoot v. Teamsters Union, 424 F.2d
1001, 1004-05 (10th Cir), cert. denied, 400 U.S. 950 (1970).
Finally, Local 166 argues that because no damages
could be established even if an unfair representation
claim were proven, dismissal is proper. It argues that
“GM, if any party, would be solely liable to plaintiff.’
Appellant’s complaint asserts that GM and the Unions
are jointly and severally liable for his injury. This is not
true. When a union breaches it duty of fair
representation, the employer remains liable for any
damages “attributable solely to the employer's breach of
contract,’’ 1.e., the wrongful discharge. Vaca, 386 U.S. at
197.
When a breach of the duty of fair representation is
shown, however, the Union is liable for that portion of
Appellant's injury representing “increases if any in those
damages [chargeable to the employer] caused by the
union's refusal to process the grievance.” Vaca, 386 U.S.
at 197-98. Thus, upon a finding of unfair representation,
‘the court must fashion an appropriate remedy.” 386
U.S. at 187, compensating Appellant from the Union's
pocket for those expenses he incurred because of the
Union's failure to process his grievance properly.
Since none of the grounds urged in Local 166’s
cross-appeal requires dismissal of Appellant's complaint
against it, we reverse the District Court's judgment in its
favor and remand for a finding of appropriate relief.
Our holding that the Local breached its duty of fair
representation requires reversal of the District Court's
dismissal of (11) Appellant's claim against GM. When the
59
Union has failed in its duty to fairly represent an
employee, the employer may not invoke the Union's
failure to follow procedures set forth in the collective
bargaining agreement as a defense to the action of the
employee. Vaca v. Sipes, 386 U.S. at 185.
G.M. has filed a cross-appeal which asserts that
dismissal of Appellant’s claim against it should
nonetheless be affirmed on two alternative grounds.
First, it argues that the complaint raises no factual issues
and that it is entitled to summary judgment on the
merits. Second, GM contends that dimissal should have
been granted because of Appellant’s failure to exhaust
his intra-Union remedies. The District Court rejected
both arguments in pre-trial orders.
The second ground is quickly rejected. As we stated
above, Appellant sufficiently exhausted his intra-Union
remedies to give the District Court jurisdiction See also
Scott v. Anchor Motor Freight, Inc., 496 F.2d at 279.
The first ground is that Appellant raised no genuine
factual issue concerning his claim that discharge was so
excessive a penalty for his offense as to amount to a
breach of the collective bargaining agreement between
GM and UAW. There appears to be no dispute that
Appellant was intoxicated on the day in question and
that he was abusive towards his foreman. Appellant’s
claim is that discharge was unwarranted in view of past
treatment of similar offenses, which allegedly consisted
of temporary suspension rather than discharge. His
claim as stated in the original complaint was that
discharge was “unduly harsh, arbitrary, discriminatory
and contrary to past interpretations’ of the UAW-GM
National Agreement. Appellant filed a motion to amend
his complaint to clarify the basis of this allegation, but
the record filed on appeal contains no copy of the
proposed amended complaint and the District Court took
no action on Appellant's motion to amend.
60
Before trial GM filed a motion for summary judgment,
asserting that under Rule 56, F. R. Civ. P., it was entitled
to judg- (12) ment as a matter of law. Its supporting brief
argued that because discharge was permitted under the
National Agreement as a penalty for the offense
Appellant allegedly committed, Appellant could not
establish that discharge amounted to a breach of
contract. The District Court denied this motion, stating:
[T]he question is whether imposition of the
discharge sanction in Ruzicka’s case constituted a
breach of contract by General Motors and this
must be decided on the particular facts of this
case. *
We have reviewed GM’s supporting documents which
accompanied its motion for summary judgment. The two
affidavits and other materials support its claim that
discharge is a permissible penalty which was employed
once before (and upheld by an arbitrator) in a case
somewhat similar to Appellant's. These materials do not,
however, foreclose as a factual question whether
discharge was a harsh, arbitrary, and discriminatory
penalty in view of all the circumstances of Appellant's
situation. Accordingly, we cannot find that Appellant’s
allegation concerning the discharge is beyond factual
dispute, and we cannot overturn the District Court's
refusal to grant summary judgment on the merits.
On remand, the District Court will be free to consider
Appellant's motion to amend his complaint, and GM will
be able to renew it motion for summary judgment. If a
renewed motion is accomplished by materials which
indicate that discharge is an ordinary penalty for
someone in Appellant’s position, considering the facts
* Order, Civil No. 36598 (E.D.Mich., filed Apr. 25, 1973).
61
surrounding the discharge, Appellant’s seniority, his
past work record, and other matters relevant to the issue,
Appellant will be required to demonstrate that there
remains a factual issue by alleging specific facts to
counteract GM’s showing. Rule 56(e), F. R. Civ. P.; R.E.
Cruise Inc. v. Bruggeman, 508 F.2d 415 (6th Cir. 1975). At
this point, (13) however, we may not foreclose
Appellant's opportunity to prove his case against GM.
Having reversed the District Court’s dismissal of
Appellant's daim against Local 166 and GM and having
found no alternative basis entitling the Local 166 or GM
to dismissal, we are left with a final question. This is
raised by the Unions’ cross-appeal, which seeks to
overturn the District Court’s denial of summary
judgment concerning their cross-claim against GM and
the eventual dismissal thereof.
The cross-claim sought to force GM to process the
grievance further or to sent it directly to arbitration,
despite the Unions’ failure to follow procedures
mandated by the National Agreement. On May 15, 1973,
the District Court ordered the grievance submitted to an
Umpire. Included in this Order was the requirement that
the Umpire consider the issues of arbitrability and unfair
representation, as well as the propriety of Appellant's
discharge. Thus, the District Court originally granted the
Unions’ motion for summary judgment on their
cross-claim, though on terms different from those
requested by the Unions.
On August 31, 1973, the District Court impliedly
revoked the May 15 Order by ordering that Appellant's
charges of unfair representation be submitted to the
Court for trial. Only if the Court found unfair
representation would the grievance be submitted to a
GM-UAW Umpire. “
62
Based on the finding of no unfair representation, the
District Court ordered dismissal of the entire action,
including the Unions’ cross-claim.
The Unions’ cross-appeal purports to be an attack on
the District Court’s denial of all its pre-trial motions. The
relief requested is that this Court
reverse the District Judge’s dismissal of the
Unions’ cross-claim against defendant General
Motors and ... order further processing of
plaintiff's contract grievance pursuant to the
GM-UAW Agreement or, in the alternative (14)
only, modify the Judge’s final order to provide
that dismissal of said cross-claim was without
prejudice.
In view of our reversal of the unfair representation
conclusion, we need not decide whether the Unions’
cross-claim was well taken had there been no unfair
representation. Nor need we decide whether, in that
event, further processing for the grievance should be
ordered instead of merely providing that dimissal of the
cross-claim was without prejudice.
Were we to decide that the District Cout should have
granted the Unions’ motion for summary judgment on
their cross-claim, we would affect Appellant’s ability to
bring his case to a conclusion. The difficulty raised by
the Unions’ cross-appeal is that if further processing of
the grievance within the GM-UAW structure is ordered,
Appellant has been deprived of the opportunity to attain
judicial resolution of his claim.
Thus, we are compelled to comment on the proper
course of action for the District Court to take on remand.
Its choice is basically between ordering the grievance
submitted to arbitration or deciding itself the merits of
Appellant’s claim against GM.
63
This choice embodies two sets of interests. On the one
hand, there is the strong interest in settling industrial
disputes through arbitration. As discussed in the
Steelworkers Trilogy, 363 U.S. 574 (1960), arbitration ‘‘is
the substitute for industrial strife. ... [A]rbitration of
labor disputes under collective bargaining agreements is
part and parcel of the collective bargaining process
itself.” Steelworkers v. Warrior & Gulf Co., 363 U.S. 574,
578 (1960). An individual employee may prefer
submitting his grievance to an arbitrator rather than a
judge because the arbitrator is not bound to apply only
those considerations expressed in the collective
bargaining agreement. The parties to such an agreement
expect that [the arbitrator's] judgment of a
particular grievance will reflect not only what the
contract says but, (15) insofar as the collective
bargaining agreement permits, such factors as the
effect upon productivity of a particular result, its
consequence to the morale of the shop, his
judgment whether tensions will be heightened or
diminished. For the parties’ objective in using the
arbitration process is primarily to further their
common goal of uninterrupted production under
the agreement, to make the agreement serve their
specialized needs. The ablest judge cannot be
expected to bring the same experience and
competence to bear upon the determination of a
grievance, because he cannot be similarly
informed.‘
Thus, the Supreme Court held in Steelworkers that
{aJn order to arbitrate the particular grievance
should not be denied unless it may be said with
positive assurance that the arbitration clause is
$ Steelworkers v. Warrior & Gulf Co., 363 U.S. at 582.
h4
not susceptible of an interpretation that covers
the asserted dispute. Doubts should be resolved
in favor of coverage.°
Furthermore, because of its more informal nature, the
arbitration proceeding is “an efficient, inexpensive, and
expeditious means for dispute resolution.” Alexander v.
Gardner-Denver Co., 415 U.S. 36, 58 (1974).
On the other hand, there is the interest in affording an
aggrieved employee a final resolution of his claim.
Appellant was discharged on March 31, 1970. Five years
is far too long for an employee to await a final decision
on his demand for reinstatement with back pay. Further
relay (sic) would seeem unconscionable. Having met the
heavy burden of showing that his Union unfairly
represented him, Appellant is entitled to a judicial
decision on his claim against the employer. Vaca, 486
(sic) U.S. at 186.
We believe that these interests can both be served if
the District Court orders arbitration but retains
jurisdiction of the (16) case until the claims against the
Local and GM are settled. If the National Agreement is
interpreted to mean that GM is relieved of its contractual
duties because of the Union's failure to follow grievance
procedures, the District Court should proceed to award
appropriate relief? against local 166 on the unfair
representation claim. To ensure a prompt conclusion to
these proceedings, furthermore, the District Court
should consider specifying a particular time within
which arbitration should be completed. See, e.g.,
Northwest Airlines, Inc. v. Machinists Workers, 442 F.2d
244, 246 (8th Cir. 1970).
6 Id. at 582-83
” The questions of the proper allocation of damages between Local
166 and GM and of the measure of the Local's liability in the event
that the grievance is found to be without merit are not before us.
65
Accordingly, we reverse the District Court’s dismissal
of the Unions’ cross-claim and grant the relief specified.
The Judgment of the District Court is reversed, and the
cause is remanded for proceedings consistent with this
Opinion. The costs of the main appeal will be divided
between GM, on the one hand, and Local 166, on the
other, in equal amounts. The costs of the cross-appeal of
the Unions will be borne by GM, along with the costs of
GM's cross-appeal.
McCree, Circuit Judge (Concurring)
(17) I concur in the holding of the majority opinion
that the local union breached the duty of fair
representation that it owed appellant. However, | write
separately because | do not believe that the local union’s
handling of the grievance was “‘arbitrary’’ or
“perfunctory” as the majority opinion determines. The
district court determined that the union, through Panter,
neglected to file a timely statement of unadjusted
grievance, and the majority opinion does not overturn
this finding. Instead, it characterizes the negligent
handling of the grievance as arbitrary and perfunctory.
Arbitrary and perfunctory are adjectives characterizing
intentional conduct that is capricious or superficial. Here
there was an unintentional failure to act that prevented
appellant’s grievance from being submitted to
arbitration.
Nevertheless, I would hold that when a statutorily
established exclusive bargaining representative fails to
file a statement that is a prerequisite for submission of
an employee's claim to arbitration, not because the
union has made a good faith judgment for a lawful
reason that it should not file the document, but merely
because of its negligent omission, then it has breached
its duty of fair representation.
66
I do not suggest, however, that a union should be held
liable for all negligence in processing an employee's
grievance. Such a rule would put the courts in the
position of second-guessing union representatives’
decisions. In accordance with the ‘general congressional
policy favoring expert, centralized administration, and
remedial action” of employee grievances, Motor Coach
Emplovees ¥. Lockridge, 403 U.S. 274, 301 (1970), I believe
courts should not try to determine whether, in fulfilling
its duty of fair representation, a union has adopted the
tactic best suited to the needs of an aggrieved employee.
Nevertheless, I believe that a total failure to act,
whether negligent or intentional, except for a proper
reason, is behavior so egregious that, as in the case of
bad faith, hostile discrimination, arbitrariness, or
perfunctoriness, the union should be held (18)
responsible. We have stated that an action will lie
against a union for’. . . such gross mistake or inaction
as to imply bad faith.” Balowski v. International Union,
372 F.2d 829, 834 (1967). It requires only a slight
extension of this principle to require the local to answer
to a member if it precludes any consideration of the
employee's grievance by its sheer neglect to timely file a
paper that the employee is prevented by law from filing
for himself.
I believe that the incidence of an injury of this
magnitude should be shifted from the innocent
employee to the union whose flagrant negligence was
responsible for it.
67
ORDER DENYING PETITION FOR REHEARING
(United States Court of Appeals
for the Sixth Circuit)
(Filed December 9, 1975)
Before: Weick, Celebrezze and McCree, Circuit Judges.
The International Union of the UAW, Local 166 of the
UAW, and General Motors Corporation (GM), Defend-
ants below and Appellees and Cross-Appellants in this
Court, pursuant to Rule 35 of the Federal Rules of Ap-
pellate Procedure, petition for rehearing and suggestion
of Rehearing en Banc.
Upon consideration of the petition for rehearing with
the suggestion that it be heard en banc, it appearing that
a majority of the active Judges of this Court did not vote
in favor of an en banc hearing, the petition for rehearing
has been referred to the panel which heard the original
appeal.
The International Union, UAW and Local Union 166
UAW, and General Motors make a number of arguments
in support of their petitions for rehearing. Having
considered all issues raised we believe two require
comment.
General Motors argues that the Court’s opinion can be
read to imply that an employee can invoke § 301 of the
Labor-Management Relations Act to protect rights other
than those afforded him by the collective bargaining
agreement covering his unit. General Motors points to
no specific language in the opinion as conveying this
impression and we can find none. Ruzicka was only
attempting to enforce the commitments contained in the
Collective Bargaining Agreement.
The Unions contend that the Court's opinion contains
language which conflicts with language in Balowski v.
68
UAW, 372 F.2d 829 (6th Cir. 1967), and Dill v. Greyhound
Corp., 435 F.2d 231 (6th Cir. 1970), and consequently
with cases which rely on Balowski and Dill. In Balowski
the Union took a variety of steps on the employee's
behalf and all of these steps were taken in a timely
manner. It was not until an independent physician
found the employee unable to perform the duties of the
job to which he was seeking reinstatement that the
Union withdrew the employee's grievance. In Dill,
although the union local failed to take action on Dill’s
grievance it did resolve the grievance of two other
similarly situated employees which raised the identical
question contained in Dill’s grievance.
We distinguished Dill by stating:
“We do not deviate from our holding in Dill to
conclude that when a union makes no decision as
to the merit of an individual’s grievance but
merely allows it to expire by negligently failing to
take a basic and required step towards resolving
it, the union has acted arbitrarily and is liable for
a breach of its duty of fair representation.”’ Slip
opinion page 7.
Thus, we distinguish the Balowski - Dill line of cases in
which the unions considered the issues raised in the
employees’ grievances and decided the grievances did
not merit pursuing.
Our opinion in this action speaks to a narrow range of
cases in which unexplained union inaction, amounting
to arbitrary treatment, has barred an employee from ac-
cess to an established union-management apparatus for
resolving grievances.
Judge McCree concurs for the reasons set forth in his
separate concurring opinion.
It is Ordered that the Petition for Rehearing be denied.
Entered By Order Of The Court
's) John P. Hehman, Clerk
69
Concurring Opinion (Dissenting)
Re: William Ruzicka v. General Motors, Nos. 74-1939-41.
Edwards, Circuit Judge, dissenting. Since I feel that
both motions for rehearing en banc filed in these cases
raise questions of exceptional importance, and that full
court consideration is necessary to maintain uniformity
of our opinions, I dissent.
Judges Lively and Engel concur in this dissent.
OPINION
(United States District Court
Eastern District of Michigan
Southern Division)
(Oct. 10, 1977)
(William Ruzicka, Plaintiff, v. General Motors
Corporation, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW and its Local Union 166, Defendants —
No. 36598)
William Ruzicka’s suit against General Motors
Corporation for wrongful discharge and against Local 166
of the International Union, United Automobile Workers
for breach of duty of fair representation is before this
Court a second time following remand from the United
States Court of Appeals for the Sixth Circuit. The action
was originally dismissed on November 21, 1973, after
presentation of plaintiff's proofs at trial and a motion to
dismiss under Rule 41(b) of the Federal Rules of Civil
Procedure made by all defendants. On appeal, the case
was reversed and remanded for further proceedings,
including the taking of additional evidence and the
arbitration of Ruzicka’s wrongful discharge claim against
70
General Motors. Those proceedings have now been
completed, and following post-trial briefs and final
arguments from all parties, the case has been submitted
to the Court for further findings of fact and conclusions
of law. In its present posture, the case presents
important issues regarding a union’s duties of fair
representation and its potential liability for breach of
those duties under 29 U.S.C. § 185. Before addressing
these issues, a fuller statement of the background of the
case and the proceedings had to date is required.
I.
William Ruzicka was employed by General Motors for
almost eleven years, from April, 1959 until March 31,
1970, as a millright in the Company’s Willow Run
Assembly Plant. During that time, he was a member of
UAW Local 166! and took an active role in Local Union
affairs. On March 31, 1970, Ruzicka was observed by his
supervisor sitting on a stool at the start of his shift,
apparently drunk. He was immediately escorted to the
Company’s labor relations office for a disciplinary
interview. He requested representation by a shop
committeeman, and during the ensuing ten minute wait
made a number of threats and abusive remarks to his
supervisor.? Following the interview, Ruzicka was
discharged for being intoxicated on the job and for using
threatening and abusive language, in violation of Shop
Rules 32, 29, and 20.
' Due to a reorganization, the Local Union is now Local 1776.
2 The statements allegedly included: ‘I’m going to beat you up,”
and ‘I’m going to wait for you in a bar or at the Wayne Bowling and
I'm going to have guys there to beat you up and I’m going to get the
last one in.’’ Ruzicka also allegedly called his supervisor a ‘‘m___
f____ s.0.b.,”" a “pig” and a “snake.”
71
That same day, Ruzicka filed a grievance protesting
the Company’s action and seeking reinstatement.’ The
grievance was processed by Local 166 on his behalf
through the second step of the grievance procedure,
established under %s 28 through 55 of the GMUAW
collective bargaining agreement, without resolution.
Thereafter, on April 14, 1970, the Union filed a “notice of
unadjusted grievance,”’ under © 37, to initiate the third
step of the grievance procedure.‘ At that point, both the
Company and the Union were required under £ 37 to
simultaneously exchange ‘‘statements of unadjusted
grievance.” The exchange was to be made by Charles
Panter, chairman of the shop committee, on behalf of
Ruzicka and the Union, and by Ross Hagerman, plant
supervisor of labor relations on behalf of the Company.
After two mutually agreed upon extensions, an exchange
date of May 5, 1970 was finally set.
3 Ruzicka’s grievance read as follows:
Grievance No. 035364
“Union protests unjust penalty for allegedly violating Shop
Rules #32, 29, 20. All set of circumstances were not taken
into consideration. Union demands this employee be
brought back to work with full back pay for all time lost & all
benefits & record cleared.”
Signed: W.R. (Grievant)
B.P. (Committeeman)
4 Paragraph 37 of the GMUAW collective bargaining agreement
provides in pertinent part:
Step Three, Appeal to Corporation and International Union
(37) If the grievance is not adjusted at this step and the
Shop Committee believes it has grounds for appeal from the
Plant Management decision, the Chairman of the Shop
Committee will give the Plant Management a written ‘Notice
of Unadjusted Grievance,’’ on forms supplied by the
Corporation, and the Chairman or designated member of
(Continued on following page)
72
The exchange never took place. General Motors
subsequently took the position that Panter had not
tendered the Union's statement of unadjusted grievance
by the May 5th deadline, and relying upon the finality
provisions of the grievance procedure, 77 of the
contract, refused to process the grievance further.
William Moon, who succeeded Panter as shop committee
chairman on May 17, 1970, belatedly offered to exchange
the statements on May 26, 1970; this offer was rejected
by the Company. On June 4, 1970, Moon filed a ‘‘policy
grievance’ over the Company’s refusal to further process
Ruzicka’s grievance,** but this was subsequently
withdrawn on April 26, 1971, in the context of new
contract negotiations.
(Continued from preceding page)
the Shop Committee will then prepare a complete ‘‘Statement
of Unadjusted Grievance”’ setting forth all facts and
circumstances surrounding the grievance signed by the
Chairman of the Shop Committee. The Plant Manager or his
designated representative will also prepare a complete
“Statement of Unadjusted Grievance” and the Management's
reason in support of the position taken, signed by the Plant
Manager or his authorized representative. Three copies of
the Union's statement will be exchanged with the
Management for three copies of the Management's statement
as soon as possible and in any event within five (5) working
days of the date of filing the Notice of Unadjusted grievance.
The exchange of statements shall take place fifteen (15)
working days after receipt of the Plant Management's
decision, unless this time is extended by mutual agreement
in writing.
“ The policy grievance reads as follows:
#018127
Chairman of the shop comm. charges Management with
viol. of past practice & par. 37 of the National Agreement &
taking advantage of transition of office from 1 chairman to
another. Union demands appealed grievances of William
Ruzicka and A. Steele be put back in procedure at step three
of the National Agreement.
Date Presented: 6-4-70
Reported by: Policy
CM B. Moon
73
After twenty-seven months of exhausting his
intra-union remedies,’ Ruzicka filed this action on June
3, 1971. Against General Motors, Ruzicka alleged that his
discharge was unduly harsh and discriminatory and
therefore in violation of the GMUAW collective
bargaining agreement. 29 U.S.C. § 185. Against the
International UAW and its Local 166, Ruzicka alleged a
breach of duty of fair representation in failing to
properly process his grievance for reinstatement. 29
U.S.C. § 185. Following denial of defendant's pre-trial
motions for dismissal and for summary judgment, the
case was brought on for trial to the Court. By mutual
agreement, the trial was limited initially to plaintiff's
claim against the Local Union and its parent
International for breach of duty of fair representation.
Plaintiff's proofs in support of this claim focused
principally on the issue of whether Panter had failed to
timely file the statement of unadjusted grievance.
Hagerman and his subordinate, Jerry Bennet, both
testified that exchanges of these statements were usually
made in Hagerman’s office and that Panter never
appeared in Hagerman’s office to exchange statements
on Ruzicka’s grievance. Bennet also testified that no
Union statement on Ruzicka’s grievance was
subsequently found in the Company’s personnel records.
Panter, called as a witness by the Court, contradicted his
* Ruzicka first filed charges against Panter under Article 31 of the
UAW Constitution, charging that Panter had wilfully neglected his
grievance out of personal hostility. A trial committee found Panter
not guilty of this charge. Ruzicka also proceeded against his Local on
a similar charge, but this was also denied. Subsequent appeals to the
International Union's Appeals Committee, the International Executive
Board, and the Public Review Board were also denied. Ruzicka also
filed charges against both the Union and the Company with the
National Labor Relations Board, but the Regional Director refused to
issue a complaint, and this decision was upheld by the Board's
General Counsel.
74
testimony, contending that he had filed the Union's
statement during the first week of May, 1970, though he
was unsure of the specific date. There was testimony by
all witnesses that during Panter’s tenure as shop
committee chairman, exchange deadlines were laxly
enforced and extensions were freely granted by both the
Union and the Company, often when the deadline had
aleady passed.
Ruzicka testified that on April 15, 1970, he had
delivered to Panter, in the presence of several other
union officials, a handwritten statement of unadjusted
grievance he had prepared himself and was told by
Panter at that time that his grievance would be appealed.
Ruzicka further testified that at the time his grievance
was being processed, he had fallen into disfavor with
officials of Local 166, especially Panter, who was
personally hostile toward him because of past conflicts in
intra-union politics.
Following submission of this evidence, defendants
moved to dismiss the complaint under Federal Rule of
Civil Procedure 41(b), on the ground that Ruzicka had
failed as a matter of law to establish a breach of duty of
fair representation. This motion was granted in a
memorandum opinion dated November 21, 1973, in
which the Court made findings of fact and conclusions of
law, as provided by Rule 41(b). The Court found, on
substantial credible evidence, that Panter had failed to
file the Union’s statement of unadjusted grievance by the
twice extended May 5, 1970 deadline and that at the time
Ruzicka’s grievance was in process, some hostility did
exist between Ruzicka and Panter. However, no showing
was made and the Court was therefore unable to find
that Panter’s hostility had motivated his intentional
mishandling of the grievance or had otherwise tainted
his representation of Ruzicka. In short, the Court was
unable to find bad faith.
75
In the absence of bad faith, the Court held that
defendant Unions could not be liable for breach of duty
of fair representation:
The duty of fair representation is breached only
when the union’s conduct is ‘‘arbitrary,
discriminatory, or in bad faith.”” Vaca v. Sipes,
supra, 386 U.S. at 190. There must be “substantial
evidence of fraud, deceitful action or dishonest
‘uct,’” Humphrey v. Moore, 375 U.S. 335, 348
(104), or of ‘discrimination that is intentional,
severe, and unrelated to legitimate union
objectives.”” Amalgamated Ass'n of St., Elec. Ry. &
Motor Coach Employees v. Lockridge, 403 U.S. 274,
301 (1971). To insure that the salutary purposes of
the pre-emption doctrine are not subverted by
excluding unfair representation suits from its
purview, the distinction ‘‘between honest,
mistaken conduct, on the one hand, and
deliberate and severely hostile and irrational
treatment on the other, needs strictly to be
maintained.’’ Lockridge, supra, 403 U.S. at 301.
Memorandum Opinion, November 21, 1973, pp.
4-5. ‘
Having dismissed plaintiff's claim for unfair
representation against the Local and International
Unions, plaintiff's claim for wrongful discHarge against
General Motors was dismissed as well. Vaca v. Sipes, 386
U.S. 171 (1967); Balowski v. International Union, 372 F.2d
829, 832-833 (6th Cir. 1967).
All parties appealed. Plaintiff appealed the dismissal of
his action under Rule 41(b), contending that a prima facie
case of Union bad faith in the processing of his grievance
had been made out by his trial proofs. General Motors
appealed the Court's denial of its pre-trial motion to
76
dismiss on grounds of failure to exhaust intra-union
remedies. The Unions appealed the Court’s denial of
their pre-trial motion to dismiss on grounds of failure to
exhaust intra-union remedies and collateral estoppel as
to adverse decisions in those union remedies which
Ruzicka had exhausted. The Unions also appealed the
Court’s denial of their cross-claim against General
Motors to compel arbitration.
On September 23, 1975, the Court of Appeals issued its
decision. Ruzicka v. General Motors Corp., et al., 523 F.2d
306 (6th Cir. 1975). The Court affirmed the dismissal of
plaintiff's action against the International UAW, finding
that plaintiff had not proved the involvement of any
officials of the International in the processing of his
grievance. Hines v. Local 377, 506 F.2d 1153, 1157 (6th
Cir. 1974). rev'd on other grounds, 424 U.S. 554 (1975).
The denial of defendant's pre-trial motions to dismiss
was also affirmed, the Court concluding that plaintiff
had pleaded a valid cause of action against General
Motors, had sufficiently exhausted his intra-union
appeals, and was not collaterally estopped by prior
adverse decisions in those appeals.
As to the Rule 41(b) dismissal of plaintiff's claim
against Local 166, however, the Court of Appeals
reversed. Accepting the facts as found by this Court in
its memorandum opinion of November 21, 1973, the
Court nevertheless held that Panter’s “negligent and
perfunctory handling” of plaintiff's grievance constituted
a breach of duty of fair representation, even in the
absence of bad faith:
We believe that the District Court misread Vaca
when it held that ‘bad faith’ must be read into
the separate and independent standards of
“arbitrary” or “discriminatory” treatment. Union
77
action which is arbitrary or discriminatory need
not be motivated by bad faith to amount to unfair
representation.
In the instant case Local 166 officials discussed
Appellant's grievance among themselves and
with GM personnel, but inexplicably neglected to
take Appellant’s grievance to the third stage of
processing by not filing a Statement of
Unadjusted Grievance with the appropriate GM
official. Having sought and been granted two
extensions of time to file the Statement and at no
time having decided that Appellant’s claim was
without merit, the Local allowed the final
deadline to pass without filing the Statement or
requesting a further extension. At this point the
Local did not inform either Appellant or GM that
it had decided either to continue or to stop
processing Appellant’s grievance. Such negligent
handling of the grievance, unrelated as it was to
merits of Appellant’s case, amounts to unfair
representation. It is a clear example of arbitrary
and perfunctory handling of a grievance. Ruzicka
v. General Motors Corp., et al. supra at 310.
The Court of Appeals also reversed the dismissal of
plaintiff's complaint against General Motors, holding
that substantial factual issues remained as to his claim of
wrongful discharge and that General Motors would not
be entitled to rely on the finality provisions of the
grievance procedure as a defense to this claim if the
Union had breached its duty of fair representation.
Having determined that Ruzicka’s claims against both
General Motors and Local 166 would have to be
remanded for further proceedings, the Court of Appeals
went on to consider the Union’s cross-claim for
arbitration. After a discussion of the advantages and
78
disadvantages of this procedure, the Court directed that
plaintiff's grievance for wrongful discharge against
General Motors be referred to arbitration, with this
Court retaining jurisdiction of the case until all claims
against defendants were resolved.**
Following remand, on August 20, 1976, Ruzicka’s
grievance was referred to a GM/UAW Umpire for
arbitration on its merits.° At the October 14, 1976
hearing before the Umpire, General Motors offered no
testimony, resting its case for plaintiff's discharge on the
records of the Company and the facts as brought out in
the earlier grievance proceedings. The Union offered no
evidence in rebuttal, arguing that the Company had
failed to sustain its burden of justifying plaintiff's
discharge. After receiving certain documentary exhibits
into the record, the Umpire took the matter under
advisement, and on November 11, 1976, issued his
decision finding General Motors liable for wrongful
discharge and breach of GMUAW collective bargaining
agreement.
* A petition for rehearing with suggestion of rehearing en banc
was denied by the Court of Appeals on December 9, 1975. Judges
Edwards, Lively, and Engel dissented. Ruzicka v. General Motors
Corp., et al., 528 F.2d 912 (6th Cir. 1975).
* The order of arbitration provided:
It Is Ordered that plaintiff William Ruzicka’s grievance is
referred to arbitration to be determined in accordance with
the collective bargaining agreement to which defendants are
parties;
The issue to be resolved by arbitration is whether plaintiff
William Ruzicka’s discharge is justified and if so, to provide
appropriate relief;
It Is Further Ordered that this arbitration proceeding shall
be commenced and concluded within three (3) months of the
date of this order;
The court retains jurisdiction of thi’ cause for the purpose
of determining appropriate relief. in any event, against Local
166 because of its breach of the duty to represent William
Ruzicka
79
In a thorough and well-written opinion, the Umpire
determined that Ruzicka’s intoxication on March 31,
1970, justified only a 30-day suspension without pay, in
view of his past disciplinary and work records, and in
light of prior decisions of other umpires imposing at
most a 30-day suspension in similar cases. The Umpire
futher found that General Motors had acted improperly
in requiring Ruzicka to submit to an immediate
disciplinary interview in his still-intoxicated condition,
and should have sent him home and postponed the
interview until the following day. Under these
circumstances, the Umpire ruled that Ruzicka could not
be held accountable for his abusive and insubordinate
conduct toward his superiors.
The Umpire did not pass upon General Motors’
procedural defense to Ruzicka’s grievance based upon
the Union’s failure to timely file its statement of
unadjusted grievance. Rather, the Umpire, pursuant to
the terms of this Court’s order of arbitration, dealt only
with the merits of the grievance,’ and accordingly, found
General Motors in breach of the GM/UAW contract and
liable for reinstatement with full back pay.
7 Ina cover letter to the order sent to attorneys for all parties, the
Court stated:
By my order referring this grievance to arbitration, there
will be one issue before the arbitrator. If the arbitrator
decides that the penalty employed was too severe, the
remedies under the contract against General Motors
Corporation will be made available to Mr. Ruzicka. If the
arbitrator decides that the penalty was justified, Mr. Ruzicka
will have no remedies against General Motors Corporation.
In either case, since this Court will retain jurisdiction, Mr.
Ruzicka may return here for appropriate relief against Local
166 because of its breach of representation of plaintiff. That
decision will await the outcome of arbitration.
80
Following arbitration, plaintiff moved for summary
judgment against General Motors upon confirmation of
the Umpire’s decision and for summary judgment
against Local 166 based on the Court of Appeals
decision. General Motors opposed summary judgment
and argued that this Court had misread the Court of
Appeals directions on remand in submitting only the
merits of Ruzicka’s wrongful discharge claim to
arbitration. Both the Company and the Union argued
that the Court of Appeals decision did not preclude the
submission of further evidence regarding the issue of the
Union's breach of duty of fair representation.
At hearings held on February 10 and 28, 1977, the
Court ruled that summary judgment against General
Motors based upon the Umpire’s award could not be »
entered unless the liability of the Union for breach of
duty of fair representation was first found. Vaca v. Sipes,
supra; Hines v. Anchor Motor Freight, 424 U.S. 554,
569-570 (1975). The Court indicated, however, that in all
other respects the Umpire’s decision appeared just and
reasonable and would be confirmed by the Court if the
liability of the Union were established.*®
* The Court reaffirmed its decision referring only the merits of
Ruzicka’s grievance to arbitration. General Motors’ procedural
defense to plaintiff's claim of wrongful discharge would be no
defense at all if plaintiff's claim of breach of duty of fate,
representation against the Union is sustained. As recognized by the
Umpire in his decision of November 11, 1976, plaintiff's claim against,
the Union is beyond the scope of his decisional authority, which is
limited under €s 46 and 53 of the GMW/UAW contract solely to deciding
claims for breach of the contract. Accordingly, General Motors’
procedural defense, because it is necessarily dependent upon the
outcome of plaintiff's claim against the Union, can only be
determined by the Court.
81
The Court ruled that summary judgment on the
Union's liability could not be entered merely on the
basis of plaintiff's initial proofs at trial and the
intervening decision of the Court of Appeals. While the
Court of Appeals decision does contain statements which
appear to hold unequivocally that Local 166 is liable for
breach of duty of fair representation, these statements
must be read in light of the incomplete record which was
before the Court following dismissal of plaintiff's action
under Rule 41(b). Defendants had not presented any
evidence in defense of plaintiff's claims at that point and
had not foregone their right to do so by moving for a
Rule 41(b) dismissal. Riegel Fiber Corp. v. Anderson Gin
Co., 512 F.2d 784 (5th Cir. 1975); White v. Rimrock
Tidelands, Inc. 414 F.2d 1336 (5th Cir. 1969). Thus, the
decision of the Court of Appeals must be construed to
establish only a prima facie duty of fair representation.
According to Moore’s Federal Practice, a reversal of an
order of dismissal under Rule 41(b) would preclude the
presentation of further evidence by defendants in only a
limited number of cases:
Where the facts are not disputed or where
defendant has presented all his evidence upon
being called as a witness for the plaintiff the
appellate court upon reversal of a dismissal may
properly direct the district court to enter
judgment for the plaintiff. 5 Moore’s Federal
Practice © 41.13[2] (footnote omitted).
No.such directive was issued by the Sixth Circuit Court
of Appeals in this case.
Having denied plaintiff's motions for summary
judgment, the Court proceeded to hear further testimony
from the Local Union in defense of plaintiff's unfair
representation clam, Following this, all parties presented
testimony and documentary evidence on the issue of
damages. Extensive post-hearing briefs have been filed.
82
Il.
The first issue to be determined is the liability of Local
166 on plaintiff's claim for breach of duty of fair
representation. As noted above, the Union presented
further testimony in defense of this claim following
remand. This recent testimony primarily focused, as did
plaintiff's evidence at the original trial, on the issue of
whether Panter had timely filed the Union’s statement of
unadjusted grievance. The Union presented testimony
from four Local officials, Dennis King, Ralph Stevens,
Ray Westphal, and Bernard Pritchett, who all testified,
with only minor variation, to a meeting they had
witnessed between Panter and Jerry Bennet in the
Company’s labor relation office on April 30, 1970, at
which Panter had presented to Bennet the Ruzicka
statement of unadjusted grievance. According to this
testimony, Bennet accepted the statement and placed it
in the Company’s files. Westphal and Pritchett further
testified to a meeting with Hagerman in Hagerman’s
office, several days later, when Hagerman showed them
the Ruzicka statement in his files.
This testimony directly conflicts with previous
statements made by other witnesses in the case,
particularly Hagerman an Bennet, who both denied
ever receiving the Union’s statement. Where such a
conflict in testimony is presented, the Court, as the
finder of fact, must judge the credibility of the witnesses
and consider other relevant circumstances to determine
which version of the facts to credit. Federal Rule of Civil
Procedure 52(a); Sweeney v. American Steamship Co., 491
F.2d 1085, 1089-1090 (6th Cir. 1974). In this case, despite
the recent testimony of these Union officials in defense
of their Local, the Court remains persuaded that Panter’s
filing of the Ruzicka statement of unadjusted grievance
never took place.
83
Two of these Union officials who testified to an April
30, 1970 filing of the Unions statement testified
otherwise on prior occasions. King testified before a
Union trial committee on July 6, 1971 that Panter had
actually presented the statement to Bennet on May 5,
1970. Prichett testified before the trial committee in 1971
that he did not remember any filing of the Union
statement with Bennet. Moreover, Dolores Weems, the
secretary for Local 166, testified both before the trial
committee and at recent proceedings before the Court
that it was not until May 5, 1970 that she had typed the
final draft of the Union’s statement, and original and
eight copies, and presented them to Panter for filing. The
discrepancy in dates here is important. Bennett, called as
a witness in rebuttal, testified that he was on vacation on
May 5, 1970. He further testified that on May 26, 1970,
when Moon approached him and belatedly attempted to
make the exchange, he still had all of the Union copies of
the Ruzicka statement in his possession. The testimony
of these Local officials is also belied by their actions and
attitudes toward Ruzicka’s grievance following this
alleged April 30th meeting. In particular, no one
appearea to challenge General Motors’ assertion at the
time that the Union statement in Ruzicka’s case had not
been filed. No one accused the Company of being the
guilty party in neglecting to file its statement with
Panter. Moon has testified that upon taking over from
Panter as shop committee chairman on May 17, 1970, he
reviewed the status of all union grievances and
determined that no exchange of statements had been
made in Ruzicka’s case. It was on this basis that Moon
subsequently attempted an exchange of statements on
May 26, 1970. The policy grievance later filed on
Ruzicka’s behalf alleged only that the Company had
taken unfair advantages of a turnover in Local Union
administration and past practices regarding exhange
deadlines in Ruzicka’s case. The policy grievance was
sub
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