# Petition — Ruzicka v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0310%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 982 ## Text 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0310%3A1. Public record. Not legal advice.