Petition for Writ of Certiorari — Groves v. Ring Screw Works, Ferndale Fastener Div.

| Supreme Court, U.S,

89-1166 4¢)| Firep

JAN 22 1990

EPH F. SPA.NIOL, J

No. ————_ — LERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ARTHUR GROVES, Bossy J. EVANS and

LOCAL 771, INTERNATIONAL UNION UAW,

Petitioners,

Vv.

RING SCREW WoRKS, FERNDALE FASTENER DIVISION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JORDAN ROSSEN

(Counsel of Record)

DANIEL W. SHERRICK

8000 East Jefferson

Detroit, Michigan 48214

(313) 926-5216

GEORGE KAUFMANN LAURENCE GOLD

2101 L Street, N.W. 815 16th Street, N.W.

Washington, D.C. 20037 Washington, D.C. 20006

Of Counsel Attorneys for Petitioners

a ST a

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ AER 0

45

QUESTION PRESENTED

When a collective bargaining agreement between an

employer and a union subject to § 301 of the Labor-

Management Relations Act of 1947 does not provide for

final and binding arbitration to resolve contract disputes,

but does permit the parties to resort to economic weapons

over such disputes—and is silent on the contract’s en-

forceability in court—is judicial enforcement of the con-

tract in a § 301 suit thereby precluded?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .............................. paaeaabanniie

sa sncncnsesossonerccseroccvceescooncesecees

JURISDICTIONAL STATEMENT .................-.

STATUTORY PROVISION INVOLVED ......................

STATEMENT OF THE CASE ..........0.00...0..2.2.----e-

REASONS FOR GRANTING THE WRIT ....................

I. THE DECISION BELOW SQUARELY CON-

FLICTS WITH THE DECISIONS OF OTHER

COURTS OF APPEALS ........................2::000-+

Il. THE DECISION BELOW IS INCONSISTENT

WITH THE NATIONAL LABOR POLICY ......

Tee. cncsonensceneenesenssccsscnveccsnereces

(iii)

Page

iv

TABLE OF AUTHORITIES

CASES: Page

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

UTED cacinshocieiecshiesiundbesichessvcieasabouesas: <ijualdietameieddibdananieiasiteatin 5

Associated General Contractors \ v. Illinois Confer-

ence of Teamsters, 486 F.2d 972 (7th Cir. 1973).. 6,7

Breish v. Ring Screws Works, 397 Mich. 586, 248

Se a a 7

Dickeson v. DAW Forest Products, 827 F.2d 627

(9th Cir. 1987) ........ A ETT Le: 7 ae 4,5,8

Fortune v. National Twist Drill, 684 F.2d 374

es I a asraeaieniecinsdnntinesiiianan 4

Haynes v. United States Pipe & Foundry, 362 F.2d

ee API: IID ccitnntceti ee 5, 9, 10

Textile Workers v. Lincoln Mills, 353 US. 448

Nita eR RRR RS i BER BNR SSG et 8,9

United Brotherhood of C. & J. v. Hensel Phelps

Const. Co., 376 F.2d 731 (10th Cir.), cert. de-

we Bie By. Rrra en,

STATUTES:

Labor Management Relations Act of 1947, 29 U.S.C.

151 et seq.

es MP Wels Te TOPE crecnceivonisicnncccesesvsccsess 10, 11

§ 308(d), 20 U.S.C. § 178 (¢) ............................ 9,10, 11

is iP EES TE TRITD secserceenmmsseeerensnsisstgnndaninnnuliaaal passim

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1989

No.

ARTHUR GROVES, BoBBY J. EVANS anv

LOCAL 771, INTERNATIONAL UNION UAW,

Petitioners,

RING SCREW WORKS, FERNDALE FASTENER DIVISION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Arthur Groves, Bobby J. Evans and Local 771, Inter-

national Union UAW, the plaintiffs in the district court

and the appellants in the court of appeals, hereby peti-

tion for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Sixth Circuit

in Groves v. Ring Screw Works, Ferndale Fastener Div.,

6th Cir. Nos. 88-1452, 88-1579 (Aug. 16, 1989).

OPINIONS BELOW

The court of appeals’ opinion is reported at 822 F.2d

1061 and is reproduced at pp. la-12a of the appendix to

this certiorari petition (hereafter “Pet. App.’’)

The district court’s orders granting the defendant’s

motions for summary judgment are unreported and are

reproduced at Pet. App. 16a-29a.

2

JURISDICTIONAL STATEMENT

The court of appeals’ opinion was entered on August

16, 1989. Pet. App. la. That court’s order denying a

timely petition for rehearing was entered on October 23,

1989. Pet. App. 15a. This Court’s jurisdiction is invoked

pursuant. to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This case involves § 301 of the Labor Management Re-

lations Act of 1947 (“LMRA”), 29 U.S.C. § 185. which

provides in pertinent part as follows:

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing em-

ployees 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 re-

spect to the amount in controversy or without re-

gard to the citizenship of the parties.

STATEMENT OF THE CASE

Ring Screw Works (“the Company”) discharged em-

ployees Arthur Groves and Bobby J. Evans; Groves for

alleged absenteeism and Evans for alleged falsification of

company records. Both Groves and Evans were repre-

sented for purpose of collective bargaining by Interna-

tional Union, United Automobile, Aerospace and Agri-

cultural Implement Workers of America, UAW, and its

Local 771 (“UAW” or “Union’). And, at the time in

question Ring Screw Works and UAW had negotiated and

were parties to collective bargaining agreements covering

the Company’s employees. Pet. App. 2a.

The collective bargaining agreements provide, inter

alia, that Ring Screw Works may discharge employees

only for “just cause.” In addition the agreements in-

clude a grievance procedure which provides that “{s]hould

a difference arise between the Company and the Union

or its members employed by the Company, as to the

we ewe ~~ ce

3

meaning and application of the provisions of the agree-

ment, an earnest effort will be made to settle it as fol-

lows.” The grievance procedure then sets forth a four-

step process, beginning with discussions between “the em-

ployee, his stewart and the foreman of his department”

and culminating in Step 4 which provides in full that

“(t]he Shop Committee and the Company may call in an

outside representative to assist in settling the difficulty.

This may include arbitration by mutual agreement in

discharge cases only.” Pet. App. 3a-4a, n.2.

Where “[a]n agreement is reached between the Com-

pany and the Shop Committee under the grievance pro-

cedure” that agreement is “binding.” Where all negotia-

tions have failed through the grievance procedure, the

Union is effectively released of its no-strike pledge and

the Company of its “no-lockout pledge.” ' The collective

bargaining agreement is silent on the parties’ right to

sue over alleged conduct breaches. Pet. App. 3a-4a.

Following their discharges, both Evans and Groves

sought their Union’s assistance in regaining their jobs.

Discussions were conducted pursuant to the collective

bargaining agreement’s grievance procedure. Those dis-

cussions did not result in any settlement or compromise

of the grievances. The Company refused UAW’s offer to

take both cases to binding arbitration. And the Union

did not choose to invoke its option to strike. Pet. App.

4a-5a.

Evans and Groves, joined by their Union, filed suit in

state court to enforce the “just cause” provision of the

collective bargaining agreements. Ring Screw Works re-

moved both cases to federal district court invoking that

court’s jurisdiction under the federal labor law. In

both cases, the district court granted summary judg-

ment to the Company on the ground that plaintiffs were

—-——- -————

1 The collective bargaining agreement covering the Evans—but

not the Groves--dispute also provided that “unresolved disputes

shall be handled as set forth in [the no strike clause].” Pet. App. 4a.

d

bound by the “result” of the grievance procedure and

therefore could not seek judicial enforcement of the con-

tract terms in the absence of proof that the Union vio-

lated its duty of fair representation. The Sixth Circuit

affirmed on the authority of its earlier ruling in Fortune

v. National Twist Drill, 684 F.2d 374 (6th Cir. 1982).

Pet. App. 4a-8a. The panel hearing this case noted, how-

ever, that “other courts in comparable circumstances

have reached a decision contrary to Fortune” citing

Dickeson v. DAW Forest Products, 827 ".2d 627 (9th

Cir. 1987), and that “[wlere we deciding the issue with

a clean slate, we might be disposed to adopt the rationale

of Dickeson.” Pet. App. 8a, 11a.

REASONS FOR GRANTING THE WRIT

Congress’ purpose in adding § 301 of the Labor Man-

agement Relations Act of 1947 to the federal labor law

was to promote labor peace by assuring that collective

bargaining agreements are enforceab'e in court. None-

theless. a deep division has developed in the lower courts

as to whether collective bargaining agreements which

are silent on judicial enforcement and which establish a

grievance procedure terminating not in a peaceful and

final method of determining whether there has been a

contract breach but in an option to strike and to lockout

are judicially enforceable.

The Fifth_and Sixth Circuits have held that under

such collective bargaining agreements resort to economic

weapons is the exclusive remedy. The rule in the Seventh.

Ninth and Tenth Circuits is that such agreements are

enforceable in court. That is also the view of the Michi-

gan Supreme Court (under its parallel jurisdiction to

hear LMRA § 301 claims).

As the decision below re-emphasizes, only this Court

ean reconcile this otherwise irreconcilable, longstanding

division in the courts of appeals. LMRA § 301 occupies a

central place in the national labor policy. This Court has

ee eee weet

5

therefore repeatedly stressed the importance of maintain-

ing a uniform federal law of collective bargaining agree-

ments. See, e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 211 (1985) (“The interests in internretive uniform-

ity and predictability that require that labor-contract

disputes be resolved by reference to federal law also re-

quire that the meaning given a contract phrase or term

be subject to uniform federal interpretation.”) All that

being so, this certiorari petition should b* granted.

I. THE DECISION BELOW SQUARELY CONFLICTS

WITH THE DECISIONS OF OTHER COURTS OF

APPEALS.

The decision below is, as the Sixth Circuit stated, Pet.

App. 7a, in accord with that of the Fifth Circuit in

Haynes v. United States Pipe & Foundry, 362 F.2d 414

(5th Cir. 1966). However, as the court below expressly

“recognize[d], other courts in comparable circumstances

have reached a decision contrary to” the decisions in the

Fifth and Sixth Circuits, citing Dickeson v. DAW Forest

Products Co., 827 F.2d 627 (9th Cir. 1987). Pet. App. 8a.

In Dickeson, which involved an agreement that was

identical in all pertinent respects to that herein,’ the

Ninth Circuit ruled:

If the grievance procedure is deemed final, the

company’s determination is binding, and the Union's

exclusive remedy is to strike. In a case such as this

2 See 827 F.2d at 629:

The agreement’s grievance provision establishes a four-level

procedure that culminates in a hearing before two company

officials and a union representative. After the final meeting,

the company must provide the Union with its determination

in writing. If the Union disagrees with the company’s deci-

sion, the Union is permitted to call a strike. The collective

bargaining agreement provides no other remedy. Further, the

collective bargaining agreement does not state expressly

whether the grievance procedure is final. Collective Bargain-

ing Agreement, Art. 18.

6

when the contract is silent as to whether the griev-

ance procedure is final and the only remedy is to

strike, we are very hesitant to conclude that the

parties intended that the procedure be final. In As-

sociated General Contrectors v. Illinois Conference

of Teamsters, 486 F.2d 972 (7th Cir. 1973), the

Seventh Circuit was required to interpret a similar

grievance procedure. It concluded the agreement was

not final. We agree. See also S.J. Groves & Sons Co.

v. International Brotherhood of Teamsters, 581 F.2d

1241 (7th Cir. 1978). Although the right to strike is

protected, it is not a preferred method for resolving

differences. Prohibiting access to the courts bypasses

an opportunity to use reason in favor of “economic

warfare.” Associated General Contractors, 486 F.2d

at 976. Although parties to a collective bargaining

agreement may choose to designate strikes as the

sole means of objecting to management decisions, we

think they must do so expressly before we may find

judicial divestment. No preference need be accorded

strikes as a noble dispute resolution mechanism. Ac-

cordingly, we conclude that the grievance procedure

was not intended to be final. Having exhausted the

administrative process, Dickeson may bring suit

against DAW under section 301. [827 F.2d at 629-

30. ]

The decision below conflicts also with the Seventh Cir-

cuit decisions that were cited with approval in Dickeson.

In Associated General Contractors v. Illinois Conference

of Teamsters (“Teamsters”), supra, then-Judge Stevens

reasoned:

Unquestionably “the means chosen by the parties

for ‘settlement of their differences under a collective

bargaining agreement [must be] given full play.”

See United Steelworkers v. American Mfg. Co., 363

U.S. 564, 566. But it is one thing to hold that an

arbitration clause in a contract agreed to by the

parties is enforceable. It is quite a different matter

to construe a contract pi vovision reserving the Union’s

right to resort to “economic recourse” as an agree-

= ee eee ere oF eee eee

7

ment to divest the courts of jurisdiction to resolve

whatever dispute may arise. This we decline to do.

iWle did not, and do not now, construe the

agreement as requiring economic warfare as the ex-

clusive or even as a desirable method for settling

deadlocked grievances. The plain language of the

statute protects the right to strike, but there is no

plain language in the contract compelling the parties

to use force instead of reason in resolving their dif-

ferences. In our view, an agreement to forbid any

judicial participation in the resolution of important

disputes would have to be written much more clearly

than this. {486 F.2d at 976, footnote omitted. |

The Tenth Circuit had reached the same conclusion in

an early case, United Brotherhood of C. & J. Vv. Hensel!

Phelps Const. Co., 376 F.2d 731 (10th Cir.), cert. denied,

389 U.S. 952 (1967) (“Carpenters”):

The contract does not contain a “no strike” clause,

and, as we have seen, it does not provide for binding

and compulsory arbitration. Thus after the contrac-

tual dispute procedure proved ineffective to resolve

the dispute, the parties were free to pursue their

other remedies. The device selected by the union was

a work stoppage. Phelps |the employer] later has

sought its remedy in the United States District Court.

With different facts the forums selected could be re-

versed, Phelps imposing a lockout and the union

bringing suit. [376 F.2d at 737.] *

The decision below is also squarely inconsistent with

that of the Michigan Supreme Court in a case involving

the same employer, and the same contract language.

That court held that the grievance procedure at issue does

not prevent judicial enforcement of the “just cause”

clause of the contract at the behest of the employee where

the union membership had voted not to strike. Breish Vv.

3See also id.: “When the dispute is one arising within the

provisions of the contract, it is the function of the courts, under

$301 to adjudicate the dispute, absent provisions in the contract

for binding arbitration.”

8

Ring Screws Works, 397 Mich. 586, 248 N.W. 2d 526

(1976).

Il. THE DECISION BELOW IS INCONSISTENT WITH

THE NATIONAL LABOR POLICY.

In concluding that the agreements here “do bring about

an inference that a strike, or other job action, is the

perceived remedy for failure of successful resolution of

a grievance absent agreed arbitration,” the court below

acknowledged that “[s]uch resolution, by work ‘stoppage

or other interference’ is not a happy solution from a

societal standpoint of an industrial dispute, particularly

as it relates to the claim of a single employee that he has

been wrongfully discharged.” Pet. App. 10a-lla. And,

as we have seen, the Seventh, Ninth and Tenth Circuits,

while recognizing that the parties may agree that use of

economic force is the exclusive method for resolving their

contract disputes, have insisted upon express contractual

language to achieve that result on the ground that LMRA

$ 301 represents a determination that resort to the courts

is preferable to economic warfare. See pp. 5-7, supra.

Only the latter approach is consistent with the LMRA.

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957)

explicated Congress’ objectives in adopting LMRA § 301,

which, of course, provides for judicial enforcement of

agreements between employers in commerce and labor

organizations. Not only were unions to be bound to such

agreements, but

there was also a broader concern—a concern with a

procedure for making such agreements enforceable

in the courts by either party. At one point the [1947]

Senate Report, ... p. 15, states, “We feel that the

* Here, as in Teamsters and Carpenters, the union is suing to

enforce its agreement. Thus, the present case does not raise the

separate, and logically subsequent, issue implicit in Dickeson and

expressly decided in favor of suit in Breish: viz., whether an action

by an employee alone will lie where the union does not exercise its

strike option.

9

aggrieved party should also have a right of action

in the Federal courts. Such a policy is completely

in accord with the purpose of the Wagner Act which

the Supreme Court declared was ‘to compel employ-

ers to bargain collectively with their employees to

the end that an employment contract, binding on both

parties, should be made... .’” [353 U.S. at 453.] °

And the Lincoln Mills Court continued: “Congress was

also interested in promoting collective bargaining that

ended with agreements not to strike.” Jd. See also i.

at 454, quoting S. Rep. 105, 80th Cong., Ist Sess., p. 16

(1947). In short, the statute “expresses a federal policy

that federal courts should enforce these agreements on

behalf of or against labor organizations and that indus-

trial peace can be best obtained only in that way.” 353

U.S. at 455.

Lincoln Mills also establishes that the courts must look

to these congressional policies in determining whether

an agreement is to be construed to preclude a judicial

remedy merely because the parties have reserved the

right to use economic weapons to resolve their con-

tractual disputes. See 353 U.S. at 457. And it is clear

from the foregoing that it is contrary to the policy under-

lying LMRA § 301 to so interpret agreements which are

silent on the subject of judicial enforcement.

In reaching the opposite result, the Fifth Circuit, in

Haynes, supra, proceeded from another congressional

policy, explicitly stated in LMRA § 203(d), “that in set-

tling grievance disputes, the Act contemplated that the

method agreed upon by parties to collective bargaining

agreements should be the means of settling such dis-

5 See also id. at 454:

To repeat, the Senate Keport, supre, p. 17, summed up the

philosophy of § 301 as follows: “Statutory recognition of the

collective agreement as a valid, binding, and enforceable con-

tract is a logical and necessary step. It will promote a higher

degree of responsibility upon the parties to such agreements,

and will thereby promote industrial peace.”

10

putes.”” 362 F.2d at 416. That court identified “three

available forums for the resolution of disputes—contrac-

tual grievance procedure such as arbitration, or the court,

or the picket line—” and observed that “the Supreme

Court has consistently sanctioned the one chosen by the

parties in their collective agreement.’” Jd. Haynes drew

from this Court’s decisions the “common theme . . . that

when a dispute arises within the scope of a collective

bargaining agreement, the parties are relegated to the

remedies which they provided in their agreement.” Jd.

at 417.

These premises do not support, let alone compel, that

court’s conclusion :

The fact of the matter here is that the union proc-

essed appellant’s grievance up to the point of strik-

ing. The denial of his claim then became final. We

believe the law to be that his claim was thereby

barred. The court has jurisdiction. Smith v. Eve-

ning News Association, supra, |371 U.S. 195 (1962) }.

The action under the grievance procedure, here a

final decision under the terms of the agreement, may

be asserted in bar as an affirmative defense. [362

F.2d at 418.]

Haynes fails to explain the basis for its critical asser-

tion that the employee’s claim “became final”, in the sense

LMRA § 203/d) uses that term, when the union does not

choose to exercise its right to strike under the agreement.

362 F.2d at 416-417. And, it is precisely in this respect

that the rule in the Fifth and Sixth Circuits is contrary

to the decisions of the Seventh, Ninth and Tenth Circuits.

There is, we submit, no contradiction whatsoever be-

tween the policy in favor of judicial enforcement stated

in LMRA §301 and the policy in favor of “[f]linal

adjustment by a method agreed upon by the parties”

stated in § 203(d). Contrary to Haynes, there is nothing

in § 203(d) which expresses a preference for “the picket

line” over “the court,” 362 F.2d at 416. The congres-

11

sional policies underlying both § 203(d) and § 301 clearly

bespeak a preference in favor of the judicial remedy over

the use of economic weapons.

In a case such as this one, there has been no “final

adjustment” in accordance with the contract of the ques-

tion of whether Ring Screw Works violated the collective

bargaining agreement’s “just cause” provision, only an

indeterminate failure to adjust that grievance. And the

point of § 203 as a whole, like that of § 301, is “to pre-

vent or minimize interruptions of the free flow of com-

merce growing out of labor disputes.” See § 203(a).

It is thus paradoxical to draw the lesson from § 203(d)

that the courts are required to read collective bargaining

agreements that merely permit strikes and lockouts as

requiring resort to that option and as precluding a § 301

suit to enforce the agreement according to its terms.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

JORDAN ROSSEN

(Counsel of Record)

DANIEL W. SHERRICK

8000 East Jefferson

Detroit, Michigan 48214

(313) 926-5216

GEORGE KAUFMANN LAURENCE GOLD

2101 L Street, N.W. 815 16th Street, N.W.

Washington, D.C. 20037 Washington, D.C. 20006

Of Counsel Attorneys for Petitioners

ee ee ee ee eee ee ee ae ee) ee eee eee, ee) 2 ee

la

APPENDIX

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

Nos. 88-1452, 88-1579

ARTHUR GROVES and LOCAL 771, UAW (88-1452) ;

Bossy J. EVANS and LOCAL 771, UAW (88-1579),

Plaintiffs-A ppellants,

V.

RING SCREW WORKS, a Michigan Corporation,

FERNDALE FASTENER DIVISION,

Defendant-A ppellee.

Argued Feb. 21, 1989

Decided Aug. 16, 1989

Rehearing and Rehearing En Banc

Denied Oct. 23, 1989

William Mazey (argued), Rothe, Mazey, Mazey &

Hamburger, Southfield, Mich., for Arthur Groves, Bobby

J. Evans, and Local 771, UAW, Plaintiffs-Appellants.

Richard M. Tuyn (argued) and Terrance V. Page,

{ Clark, Hardy, Lewis, Pollard & Page, Birmingham,

Mich., for Ring Screw Works, a Michigan Corp., Fern-

dale Fastener Div., defendant-appellee.

Before WELLFORD, NELSON and NORRIS, Circuit

Judges.

; : WELLFORD, Circuit Judge.

a eT EPs SF

2a

We are concerned with two cases, consolidated on

appeal, in which the district courts dismissed employee

claims under § 301 of the Labor Relations Management

Act holding that the collective bargaining agreement

(CBA) provided that a strike or other job action was

the exclusive means of grievance resolution. The appli-

cable CBAs provided that the parties were bound if an

agreement was reached at some stage of the prescribed

process. If the grievance procedure failed to resolve the

grievance, the union might strike, but exhaustion of the

contract procedure was required before the union could

take such action.

The relevant facts are not disputed. Ring Screw

Works (Ring) employed both plaintiffs, Arthur Groves

and Bobby J. Evans. Ring terminated Groves for al-

legedly excessive, unexcused absences. Ring dismissed

Evans for allegedly falsifying company records. Groves

and Evans, on the other hand, contend that Ring fired

them without due cause and violated the CBAs. Groves

and Evans brought separate lawsuits against Ring in

state court for wrongfu! discharge. The union joined as

plaintiff in both cases. Ring filed a petition for removal

in both cases, claiming that the causes of action could

have been brought under § 301 of the Labor Management

Relations Act, 29 U.S.C. § 185.' Ring filed motions for

summary judgment in both cases, which the district judge

granted, holding that the plaintiff could not bring a cause

of action under § 301 without alleging that their union

breached its duty of fair representation. We affirm.

The issue in both cases is whether the grievance pro-

cedures contained in the CBAs were the exclusive means

for resolving disputes, thus precluding a direct action for

1 Section 301 preempts state law to the extent the action involves

an interpretation of the CBA. See, e.g., Allis-Chalmers v. Lueck,

471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985). See

also Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108

S.Ct. 1877, 100 L.Ed.2d 410 (1988).

3a

breach of contract absent an allegation that the union

breached its duty of fair representation.

Both CBAs prescribed a multi-step grievance procedure

in which the employee, management representatives, and

union representatives were called upon to resolve the

dispute.* If the parties are unable to resolve the griev-

2 The CBA, by which Groves was bound, stated:

Section 1. Should a difference arise between the Company and

the Union or its members employed by the Company, as to the

meaning and application of the provisions of the agreement, an

earnest effort will be made to settle it as follows:

Step. 1. Between the employee, his steward and the foremen

of his department. If a satisfactory settlement is not reached

then

Step 2. Between the Shop Committee, with or without the

employee, and the Company Management. If a satisfactory set-

tlement is not reached then

Step 3. The Shop Committee and/or the Company may call the

Local Union President and/or the International Representative

to arrange a meeting in an attempt to resolve the grievance.

If a satisfactory settlement is not reached then

Step. 4. The Shop Committee and the Company may call in an

outside representative to assist in settling the difficulty. This

may include arbitration by mutual agreement in discharge cases

only.

Section 2. Grievances alleging an unjust or discriminatory dis-

charge must be submitted in writing to the foreman involved

within two (2) working days of the discharge. The Company

must render a disposition within four (4) working days of the

receipt of such grievance.

Section 3. The Company shall not consider the grievances of

any individual employee unless it is presented in writing under

the grievance procedure within five (5) working days of their

occurrence, excepting discharges which are governed by the

preceding section. The Company will render a disposition within

five (5) working days of receipt of such grievance.

Section 4. Members of the Shop Committee and chief stewards

shall be allowed the necessary time to investigate and adjust

grievances promptly.

Section 5. An agreement reached between the Company and

the Shop Committee under the grievance procedure shall be

4a

ance, binding arbitration is available only “by mutual

agreement in discharge cases only.”

In addition, Groves’ CBA included this no strike clause:

The Union will not cause cr permit its members to

cause, nor will any member of the Union take part

in any strike, either sit-down, stay-in or any other

kind of strike, or other interference, or any other

stoppage, total or partial, or production at the Com-

pany’s plant during the terms of this agreement

until all negotiations have failed through the griev-

ance procedure set forth herein. Neither will the

Company engage in any lockouts until the same

grievance procedure has been carried out.

’ Evans’ CBA contained the same no strike clause but also

provided that “[{u]nresolved grievances (except arbitra-

tion decisions) shall be handled as set forth in [the no

strike clause].”

In both cases the district court construed the CBAs to

provide that if a grievance were not resolved through the

grievance procedures, the union’s only option was to

strike. In the case of Evans, a strike vote was taken by

the unit members at the plant where Evans was em-

ployed, but the vote failed to carry the required two-

thirds majority; however, in Groves’ case, no strike vote

was taken. In both cases the district court concluded by

summary judgment that plaintiffs were found by the re-

sults of the grievance procedure and/or the strike vote

because the grievance procedures were exclusive, and

therefore could not bring a § 301 cause of action without

binding on all employees affected and cannot be changed by

any individual.

(Emphasis added). The CBA by which Evans was bound, contained

similar terms but also included express time limitations and writing

requirements.

5a

alleging that the union breached its duty of fair repre-

sentation.

The question before the court is whether an employee

and union may bring a § 301 cause of action against

the employer for discharge in violation of the CBA if:

(1) the union did not breach its duty of fair representa-

tion; (2) the CBA has a grievance procedure which was

exhausted without reaching a settlement; (3) the CBA

permits binding arbitration only with the consent of both

parties as tec which the employer refused arbitration; and

(4) the SBA permits a strike when the grievance proce-

dure fails to produce an agreement or arbitration.

Section 301 of the Labor Management Relations Act

(LMRA) provides:

Suits for violations of contracts between an em-

ployer and a labor organization representing em-

ployees in an industry affecting commerce as defined

in this chapter, or between any such labor organiza-

tions, 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.

29 U.S.C. § 185(a).

Section 301 “is not to be given a narrow reading.”’

Smith v. Evening News Association, 371 U.S. 195, 199,

83 S.Ct. 267, 269, 9 L.Ed.2d 246 (1962). Individual suits

may be brought under § 301; actions thereunder are not

constricted to those brought by labor unions. /d. at 200,

83 S.Ct. at 270. An employee may bring an action under

$ 301 against his employer if he has been dismissed in

violation of the CBA. Id. at 195, 83 S.Ct. at 267. How-

ever, courts have consistently favored the resolution of

labor disputes through arbitration where a CBA so pro-

vides. See United Steel Workers of America v. American

Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4

6a

L.Ed.2d 1403 (1960); United Steel Workers v. Warrior

& Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4

L.Ed.2d 1409 (1960); United Steel Workers v. Enter-

prise Wheel and Car Corp., 363 U.S. 593, 80 3.Ct. 1358,

4 L.Ed.2d 1424 (1960). Therefore, an employee is re

quired to exhaust any grievance procedure contained in

his CBA before initiating an action under § 301 against

his employer. Clayton v. International Union, 451 U.S.

679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981): Anderson v.

Ideal Basic Industries, 804 F.2d 950, 952 (6th Cir.

1986) ; see also Republic Steel Corp. v. Maddox, 379 US.

650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965).

In addition, if a CBA contains exclusive and final proce-

dures for the resolution of employee grievances, unlike

the agreement in Smith, the employee’s ability to bring

an action under § 301 will be severely restricted. See

Smith, 371 U.S. at 196 nn. 1 & 9, 83 S.Ct. at 268 nn. 1 &

9; see also U.S. Bulk Canners v. Arguelles, 400 U.S. 351,

358, 91 S.Ct. 409, 413, 27 L.Ed.2d 456 (1971) (Harlan.

J., concurring); Ames v. Westinghouse Elec. Corp., 864

F.2d 2.9, 292 (3d Cir.1988) (“If, however, the collective

bargaining agreement contains procedures for settlement

of disputes through grievance and arbitration, these con-

tractual remedies are binding on individual employees

... ); Hart v. Nat’l Homes Corp., 668 F.2d 791, 793

(5th Cir.1982).

Plaintiffs concede the exhaustion requirement and claim

to have in fact exhausted the avenues of relief available

to them under the grievance procedures. However, plain-

tiffs claim that the failure to reach an agreement after

exhausting the grievance procedure allows them to pro-

ceed in federal court on a straight § 301 action against

their employer.

We cannot agree. This court has previously concluded

that failure to reach an agreement through a similar

grievance procedure nevertheiess produced a final deci-

sion and such procedure was deemed exclusive. See For-

7a

tune v. Nat’l Twist Drill & Tool Division, Lear Siegler,

Inc. 684 F.2d 374 (6th Cir.1982). In Fortune, two em-

ployees brought an action seeking federal court review of

their discharges by their employer.

[I]n each instance, the grievance was filed concern-

ing each discharge and was prosecuted by the union

through a four-step grievance procedure without any

agreement being reached. ... [T]he labor contract

provided that the union could strike if “all negotia-

tions have failed through the grievance procedure.”

In each of these instances, while the final decision

was that of management, since the labor management

contract did not provide for arbitration, the union’s

only recourse in further prosecuting the grievance

would be to strike. In each instance, the membership

of the union voted not to strike.

Id. at 375. In Fortune, we relied upon Haynes v. United

States Pipe and Foundry Co., 362 F.2d 414 (5th Cir.

1966), in holding that “|w]here the parties fail to agree

upon arbitration as a method of breaking a deadlocked

dispute over a grievance, we are cited to no provision of

federal law which gives the federal courts the power to

make a decision for the parties.” Fortune, 684 F.2d at

375.

In Fortune, the author of that opinion pointed to no

specific language in the CBA which indicated that the re-

sult of the grievance procedure was necessarily intended

to be final. In Haynes, on the other hand, the CBA in-

cluded language indicating that the result of the fourth

step would be final. Haynes, 362 F.2d at 415. Plaintiffs

have stated that “both agreements have grievance pro-

cedures that are similar but not identical. The differences

are immaterial to the issue in the case.” * The pertinent

3 Defendant does not challenge this assertion. There is a differ-

ence between the two CBAs which might have been deemed material

in this controversy. Article IV, Section 4 of Evans’ CBA provides

8a

language of the CBA states: “Should a difference arise

between the Company and the Union or its members em-

ployed by the Company, as to the meaning and applica-

tion of the provisions of the agreement, an earnest effort

will be made to settle it,” followed by the grievance and

then the step procedures hereinabove set out. The union

may strike only if “all negotiations have failed through

the grievance procedure set forth herein.” The agreement

does not expressly indicate whether a strike is the only

option the union has if the employer refuses to submit a

grievance to arbitration. We agree with defendant that

Fortune applies and precludes plaintiffs from bringing a

cause of action under § 301 against Ring for breach of

the CBA. Fortune is especially similar to the Evans case

in that a strike vote was taken and failed. However, we

do not believe this fact to be material under Fortune.

We recognize that other courts in comparable circum-

stances have reached a decision contrary to Fortune. See

Dickeson v. DAW Forest Products Co., 827 F.2d 627

(9th Ciy.1987) (contract grievance procedure silent as to

whether final; held strike remedy not exclusive and em-

ployee could sue in federal court for improper discharge) ;

Internat’! Union, United Automobile, Aerospace and Ag-

ricultural Implement Workers of America v. Roblin In-

dustries, Inc., 561 F.Supp. 288 (W.D. Mich.1983) (find-

ing similar CBA did not produce final result, distinguish-

ing Fortune). These courts were unwilling to conclude

that a strike was the employees’ only resort following an

unsuccessful grievance prosecution unless the CBA spe-

cifically provided such.

that an “unresolved grievance shall be handled as set forth in Arti-

cle XVI, Section 7,” which in turn refers to a right to strike if “all

negotiations have failed through the grievance procedure.” (em-

phasis added). This might well infer an exclusive remedy of a

strike, lockout, or other job action. Defendant did not argue this

point in the district court, and we do not reach a decision on this

basis. We recognize, however, that Fortune might require both

CBAs to be interpreted similarly.

9a

Plaintiffs also rely upon Breish v. Ring Screw Works,

397 Mich. 586, 248 N.W.2d 526 (1976), for the proposi-

tion that federal labor policy requires that the final step

in a grievance procedure must be adequate to provide a

procedurally fair decision. We did not approve the Breish

rationale in Fortune, 684 F.2d at 375. Federal labor

policy “can be effectuated only if the means chosen by

the parties for settlement of their differences under a col-

lective bargaining agreement is given full play.” United

Steel Workers v. American Manufacturing Co., 363 U.S.

564, 566, 80 S.Ct. 1343, 13845, 4 L.Ed.2d 1403 (1960),

quoted in Hines v. Anchor Motor Freight, Inc., 424 U.S.

554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976). A

union and an employee may choose to designate strikes

and lockouts as a sole means of resolving disputes if they

do so clearly and specifically. Dickeson, 827 F.2d at 629.

See also Huffman v. Westinghouse Electric Corp., 752

F.2d 1221, 1224-26 (7th Cir.1985) (rejecting Breish and

citing Fortune).

Plaintiffs also rely principally upon two Supreme Court

cases, Smith v. Evening News Association, 371 U.S. 195,

83 S.Ct. 267, 9 L.Ed.2d 246 (1962) and Vaca v. Sipes.

386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).* The

latter reiterates the individual employee’s right, if alleg-

edly discharged unjustly and contrary to the CBA, to sue

the employer. Jd. at 183, 87 S.Ct. at 913. It states fur-

ther:

If a grievance and arbitration procedure is in-

cluded in the contract, but the parties do not intend

it to be an exclusive remedy, then a suit for breach

of contract will normally be heard even though such

procedures have not been exhausted. See Republic

Steel Corp. v. Maddox, 379 U.S. 650, 657-658 [85

S.Ct. 614, 618-19, 13 L.Ed.2d 580]; 6A Corbin, Con-

tracts § 1436 (1962).

4 Vaca is mentioned only once in Fortune, and then reference is

made to Justice Black’s dissent. 684 F.2d at 376. Smith is not re-

ferred to in Fortune.

10a

Vaca, 386 U.S. at 184 n. 9, 87 S.Ct. at 913 n. 9.

Vaca, on the other hand, sets out that:

... if 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.

However, because these contractual remedies have

been devised and are often controlled by the union

and the employer, they may well prove unsatisfactory

or unworkable for the individual grievant. The prob-

lem then is to determine under what circumstances

the individual employee may obtain judicial review

of his breach-of-contract claim despite his failure to

secure relief through the contractual remedial pro-

cedures.

386 U.S. at 184, 185, 87 S.Ct. at 913, 914.

Fortune has been cited only in one other appellate

court decision and has not again been cited by our court

again in a published opinion. Huffman v. Westinghouse

Electric Corp mentions Fortune as holding “where griev-

ance denial became final because the Union did not notify

employer of intent to strike, employee barred.” 752 F.2d

at 1225. It notes that Fortune is in accord with Haynes

v. U.S. Pipe & Foundry Co., 362 F.2d 414 (5th Cir.

1966).

We believe that the CBAs in question do bring about

an inference that a strike, or other job action, is the per-

ceived remedy for failure of successful resolution of a

grievance absent agreed arbitration. Such resolution, by

lla

work “stoppage or other interference” is not a happy solu-

tion from a societal standpoint of an industrial dispute,

particularly as it relates to the claim of a single employee

that he has been wrongfully discharged. Were we decid-

ing the issue with a clean slate, we might be disposed to

adopt the rationale of Dickeson, 827 F.2d 627.

We have the precedent of Fortune, however, and it has

been reiterated as the controlling law by our court in a

number of subsequent unpublished cases. We set out the

most recent expression of our court concerning Fortune:

This circuit has concluded, in essence that regard-

less of whether the contractual dispute resolution

mechanism results in a “final and binding” decision,

the existence of that mechanism will foreclose judi-

cial review provided we find that it was intended to

be exclusive... .

While we may question the wisdom of foreclosing

judicial review of contracts which fail to provide for

either “final” or “binding” peaceful resolution via

arbitration, since the absence of such a provision

cannot be taken to infer that the union (and thereby

its employees) gained anything in its contract nego-

tiations as a result, it is nevertheless well established

in this circuit that a panel of this court is bound by

the prior decisions of another panel of the same is-

sues.

Mochko v. Acme-Cleveland Corp., 826 F.2d 1064 (6th

Cir.1987) (unpublished per curiam); see also Agate v.

General Motors Corp., 798 F.2d 1413 (6th Cir.1986)

(unpublished per curiam), cert. denied, 479 U.S. 988,

107 S.Ct. 580, 93 L.Ed.2d 583 (1986); United Furniture

Workers v. National Bedding, 718 F.2d 1101 (6th Cir.

1983) (unpublished per curiam).

The CBAs in these cases did provide for specific griev-

ance procedures, finally including arbitration, if mutually

12a

acceptable. Absent arbitration, self-help appears to be

the means to resolve an unsettled dispute. In this type of

situation our circuit has held that an individual is barred

from proceeding under § 301 absent an allegation of lack

of fair representation by the union. The only means to

reexamine this policy would be by en banc consideration

of the Fortune holding and rationale.

We are compelled by the authority herein set out to

AFFIRM the decision of the district court as to both

Groves and Evans.

13a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 88-1452/1579

ARTHUR GROVES and LOCAL 771, UAW, (88-1452) ;

Bossy J. EVANS and LOCAL 771, UAW, (88-1579),

Plaintiffs-A ppellants,

V.

RING SCREW WORKS, a Michigan Corporation,

Ferndale Fastener Division,

Defendant-A ppellee.

Before: WELLFORD, NELSON and NORRIS, Circuit

Judges.

JUDGMENT

On Appeal from the United States District Court for

the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record from

the said district court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the judgments of

the said district court in this e- be and the same are

hereby affirmed.

IT IS FURTHER ORDERED that Defendants-Ap-

pellees recover from Plaintiffs-Appellants the costs on ap-

peal, as itemized below, and that execution therefore issue

out of said district court, if necessary.

Issued as Mandate: October 31, 1989

ENTERED BY ORDER OF THE COURT

LEONARD GREEN

l4a

Clerk

/s/ Leonard Green

Clerk

Costs: Appellee to Recover

Filing fee

Printing _....

$ 119.00

l5a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 88-1452/1579

ARTHUR GROVES, et al.,

Plaintiffs-A ppellants,

V.

RING SCREW WORKS, ETC.,

Defendant-A ppellee

ORDER

{Filed Oct. 23, 1989]

Before: WELLFORD, NELSON and NORRIS, Cir-

cuit Judges

The Court having received a petition for rehearing en

bane, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the orig-

inal hearing panel.

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDEBR OF THE COURT

/s/ Leonard Green

LEONARD GREEN

Clerk

16a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 87 CV 2989 DT

Hon. Anna Diggs Taylor

Bossy J. EvANS and LOCAL 771, U.A.W.,

Plaintiffs,

Vs.

RING SCREW WoRKS, a Michigan corporation,

Defendant.

WILLIAM MAzey P17245 Attorney for Plaintiffs

TERENCE V. PAGE P18586 Attorney for Defendant

401 South Woodward Avenue Suite 400

Birmingham, Michigan 48011

(313) 645-0800

ORDER GRANTING SUMMARY JUDGMENT

At a session of said Court held in the U.S.

Courthouse in the City of Detroit, State of

Michigan on May 25, 1988

Present: Honorable ANNA DicGcs TAYLOR

U.S. District Court Judge

This matter having come before the Court on De-

fendant’s Motion for Summary Judgment on May 23,

1988, the Court having considered the briefs of the

parties, the arguments of counsel and being otherwise

fully advised in the premises;

17a

IT IS HEREBY ORDERED for the reasons stated

from the bench and on the record that Defendant’s mo-

tion is hereby GRANTED.

/s/ Anna Diggs Taylor

U.S. District Court Judge

Approved as to form:

/s/ William Mazey

WILLIAM MAzey P17245

Attorney for Plaintiffs

/8/ Terence V. Page

TERENCE V. PAGE P18586

Attorney for Defendant

18a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No. 87 CV 72989 DT

Bossy J. EvANS and Loca 771, U.A.W.,

Plaintiffs,

V.

RING ScREW Works, a Michigan corporation,

Defendant.

BENCH OPINION OF THE COURT

RE DEFENDANT’S MOTION FOR SUMMARY

- JUDGMENT

EXCERPT OF PROCEEDINGS HAD in the above-

entitled matter before the Honorable ANNA DIGGS

TAYLOR, United States District Judge of the Eastern

District of Michigan, Southern Division, at 737 U.S.

Courthouse and Federal Building, 231 Lafayette Boule.

vard West, Detroit, Michigan, on Monday, May 23, 1988.

APPEARANCES:

WILLIAM MAZEY, ESsq@.,

On behalf of Plaintiffs.

TERENCE V. PAGE, ESqQ.,

On behalf of Defendant.

[2] Detroit, Michigan

Monday, May 23, 1988

19a

THE COURT: The Court is required by the settled

law and by national labor policy to give full effect to

fairly negotiated, undisputedly effective collective bar-

gaining agreements. In this case, the parties have nego-

tiated a contract which provides that the grievance pro-

cedure on facts such as these, where one of the members

of the unit claims an unjust discharge—the grievance

procedure ends with the strike vote of the union if the

employer refuses to arbitrate.

Now the employer has refused to arbitrate, and the

members of the bargaining unit also voted to refuse to

strike. The parties have placed their value on the dis-

position of a question of unjust discharge clearly by the

negotiation of a contract which could have included com-

pulsery and final and binding arbitration but does not,

and again by refusing to vote to strike when one of the

number of the unit needs the support of all in order to

have his individual grievance arbitrated.

The Court must honor the bargaining of the parties

and the weight that the parties—the relative weight that

they’ve placed on this, this item on the bargaining

agenda, [3] and therefore the Court must grant sum-

mary judgment to the defendant in this case.

The grievance procedure has terminated, as it was

negotiated to do, with the strike vote which was a failure

to decide to strike by two-thirds of the members of the

bargaining agreement.

The Court must presume—as defendant has said, the

Court must presume that the members of this unit got

something else instead of final and binding arbitration

when they negotiated this contract.

There must be some other term of that contract that

was more valuable to them than the final and binding

arbitration, and the Court is not going to skew the re-

sults of the bargaining by determining that the Court

will adjudicate unjust discharge regardless of the way

20a

the parties have voted and negotiated to handle such

claims.

So I must grant the judgment as requested by the

defendant.

MR. PAGE: Your Honor, if I might, there was a

second count in the complaint that dealt with the—

THE COURT: The defamation?

MR. PAGE: —defamation issue.

THE COURT: Do you want to say anything more on

the defamation claim?

MR. PAGE: No, because we have agreed that we did

[4] not suffer damage; they did defame us. cue

THE COUT: All right. The union has failed to

state a cause of defamation in this matter, and that

claim is also dismisseil. _

So I’ll look forward to hearing more about this issue,

I’m sure.

MR. PAGE: Thank you, Your Honor.

MR. MAZEY: Thank you.

THE COURT: Thank you.

(Motion concluded. )

2la

CERTIFICATE OF COURT REPORTER

I, LEIF ERIK ANDERSON, Official Court Reporter

for the United States District Court for the Eastern Dis-

trict of Michigan, Southern Division, appointed pursuant

to the provisions of Title 28, United States Code, Section

753, do hereby certify that foregoing proceedings were

had in the within entitled and numbered cause on the

date hereinbefore set forth, and do further ceritfy that

the forgoing transcript has been prepared by me or

under my direction.

‘s/ Leif Erik Anderson

LEIF ERIK ANDERSON, RPR-CM, CSR-2569

Official Court Reporter,

U.S. District Court, Eastern District

of Michigan, Southern Division.

Dated: Detroit, Michigan,

June 20, 1988.

22a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 87-CV-2988-DT

Hon. Julian A. Cook, Jr.

ARTHUR GROVES and LOCAL 771, U.A.W..,

Plaintiffs,

Vv.

RING SCREW WORKS, a Michigan corporation,

FERNDALE FASTENER DIVISION,

Defendant.

WILLIAM MAZEY P17245

Attorney for Plaintiffs

TERENCE V. PAGE P18586

Attorney for Defendant

401 South Woodward Avenue Suite 400

Birmingham, Michigan 48011

(313) 645-0800

ORDER GRANTING SUMMARY JUDGMENT

At a session of said Court held in the USS.

Courthouse in the City of Detroit, State of

Michigan on April 8, 1988.

Present: Honorable JULIAN A. Cook, JR.

U.S. District Court Judge

This matter having come before the Court on De-

fendant’s Motion for Summary Judgment on April 5,

1988, the Court having considered the briefs of the

23a

parties ,the arguments of counsel and being otherwise

fully advised in the premises:

IT IS HEREBY ORDERED for the reasons stated

f-om the bench and on the record that Defendant’s mo-

tion is hereby GRANTED.

s' Julian A. Cook, Jr.

U.S. District Court Judge

Approved as to form:

s’ William Mazey

WILLIAM Mazey P17245

Attorney for Plaintiffs

2

Terence V. Page

TERENCE V. PAGE P18586

Attorney for Defendant

24a

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUHERN DIVISION

Civil Action #87 CV 2988 DT

ARTHUR GROVES and LOCAL 771, U.A.W..,

Pliantiffs,

-VS-

RING SCREW WoRKS, a Michigan corporation,

FERNDALE FASTENER DIVISION,

Defendant.

JUDGE’S RULING ON MOTION FOR SUMMARY

JUDGMENT

Proceedings held in the above-entitled matter, before

the HONORABLE JULIAN ABELE COOK, JR., U.S.

District Judge, at 237 U. S. Courthouse and Federal

Building, Detroit, Michigan, on Tuesday, April 5, 1988.

APPEARANCES:

WILLIAM MAZEY, Esq.

Appearing on behalf of Plaintiffs.

TERENCE V. PAGE, Esq.

Appearing on behalf of Defendant.

25a

[2] Detroit, Michigan

Tuesday, April 5, 1988

Afternoon Session

* * om *

THE COURT: On July 20, 1987 the Plaintiffs

Arthur Groves and Local 771 of the UAW filed a com-

plaint in the Oakland Circuit Court against the De-

fendant Ring Screw Works, a Michigan corporation. The

Plaintiffs note in part that the individual Plaintiff Ar-

thur Groves, quote, “was discharged by Defendant on

April 22, 1987 without just cause and thereby breached

the collective bargaining agreement and the employment

contract of Plaintiff Arthur Groves.” The Plaintiffs

thereafter charge Defendant with having breached their

contractual responsibilities to the Plaintiff local and hav-

ing defamed the individual Plaintiff, who allegedly suf-

fered damage as a result of the improper activities and

actions by the Defendant. The matter was subsequently

removed to this court by the Defendant, who now sub-

mits a motion for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure. The Plain-

tiffs have filed pleadings in opposition, thereby creating

an issue which must be resolved by this Court.

The Plaintiff Groves was terminated by the Defendant

on April 22, 1987 after an extended period of [3] ab-

sences, according to the Defendant. Despite the conten-

tions of the Defendant, Groves asserts that the—his

absences were legitimate and were based for legitimate

medical causes. Because the differences between the two

entities could not be resolved, Groves utilized the pro-

visions of the collective bargaining agreement and sub-

mitted his complaint to the grievance procedure that had

been outlined and authorized by the collective bargaining

agreement. Throughout the steps the matter was unre-

solved in that the Defendant steadfastly refused to rein-

state Groves to his former position. At the conclusion of

Step 4, the request for an arbitration of the issue in con-

troversy was declined by the Defendant. Thereafter, rep-

26a

resentatives of Local 771 met to determine if a strike

vote should or should not be authorized. On May 31,

1987, the membership of the Plaintiff local voted not to

strike on the basis of Groves’ alleged improper discharge.

As a result of the decision by the membership, Groves

instituted the instant action to which reference has been

made.

The instant motion which has been brought by the

Defendant asserts that a judgment should be entered in

its favor because, one, quote, “Groves may not obtain a

judicial remedy for his alleged wrongful discharge be-

cause he has not claimed his union breached its duty of

[4] fair representation and cannot upset the finality of

his contractual grievance procedure,” end of quote, and,

two, quote, “Plaintiff union cannot recover for defama-

tion because it cannot state a prima facie case therefor.

Summary judgment is also warranted because the union

has admitted no damage to its reputation occurred as a

result of the incidents involving Plaintiff Groves.”

In response, there does not appear to be any reaction

from the Plaintiffs with regard to the Defendant’s asser-

tion, namely; the defamation issue. Thus, it would ap-

pear that there has been an implicit concession by the

laintiffs to the defamation issue. The Court believes

that, in the absence of a response and, more importantly,

because it believes that the Plaintiffs have not set forth

facts which would establish the requisite elements of def-

amation under the Rouch versus Enquirer and News of

Battle Creek case. Thus, the Court will grant summary

judgment in favor of the Defendants as relates to the

defamation issue.

We turn now to the first issue which had been raised

by the Defendant in its motion for summary judgment

and an issue about which the parties have argued most

strenuously today, namely; the alleged violation of the

just cause provision of the collective bargaining agree-

ment.

iii

27a

[5] The Defendant in its Rule 56 motion argues, in

essence, that the Plaintiff Groves cannot come to this

Court under Section 301 of the Labor-Management Rela-

tions Act inasmuch as the union has set up a mechanism

for a final dispute dispute resolution. It should be noted

that the Plaintiff has argued that this provision within

the collective bargaining agreement does not provide a

final—a provision for a final dispute and notes that it

would be inequitable, if not illegal, for the parties and,

indeed, the Court to preclude an injured party from pro-

ceeding to air his differences with the Court—

(Off the record.)

THE COURT: The Defendant relies upon United

Steelworkers of America versus American Manufactur-

ing, 363 U.S. 564, decided in 1960. There is an exception

to the Steelworkers rule in which an aggrieved party, a

Plaintiff also sues his union for breaching its duty of

fair representation. However, the exception to the Steel-

workers rule is not applicable here in that there is no

evidence that the individual Plaintiff Arthur Groves has

sued his own union and, more specifically, there is no con-

tention by Groves that the union violated its duty of fair

representation. Thus, the Court determines that the ex-

=" to which reference has been made is not applicable

ere.

[6] There is a case which was decided by the Michigan

Supreme Court in 1986, Breish, B-r-e-i-s-h, versus Ring

Screw Works, 397 Mich. 586, which adopted a holding that

would appear to support the contentions of the Plaintiff.

In that case the Court determined that an individual who

has been bound by a collective bargaining agreement

could, nevertheless, sue his employer without suing the

union when the collective bargaining agreement did not

make any provision for arbitration. The facts in Breish

appear to be clearly on point factually and substantively

here. Ordinarily, the Breish case would be dispositive of

the controversy. However, the 6th Circuit in 1982, sev-

28a

eral years prior to the rendition of Breish, rendered a

decision which runs counter to the Michigan rule. Thus,

it is the 6th Circuit standard and ruling which must ap-

ply here as opposed to the Michigan ruling. Thus, the

Court must determine that in the absence of a—strike

that—must hold that the absence of a mandatory arbitra-

tion provision does not alter the finality of the grievance

proceedings. The Court also cites the United States v.

Hendricks, 752 F 2d 1226, a 7th Circuit case, which was

decided in 1985.

This Court believes that, contrary to the assertions of

the Plaintiffs, that the Vaca versus Sipes and the Smith

versus Evening News cases, to which [7] reference was

made during the oral argument, are not applicable here

and do not give an instruction to the Court as to its find-

ings.

Thus, this Court concludes that, notwithstanding the

alleged wrongful act by the Defendant, that the union

and management, at a time prior to the alleged incident,

entereqggnto a contractual relationship which formed the

basis for the collective bargaining agreement. This Court

determines that the collective bargaining agreement did

provide for a finality of the grievance procedure and that

the alternative action—namely, the right of strike by the

workers—was specifically addressed and declined by them.

To do otherwise would, in the judgment of this Court,

not only circumvent the presumed intent of the parties,

but would have the effect of nullifying, in part, the bar-

gaining process that was engaged in by the parties prior

to the discharge of Arthur Groves by his employer. There-

fore, the Court will and does determine that the Defend-

ant’s motion for summary judgment must be granted,

and the Court will enter an appropriate order.

Thank you.

(Proceedings adjourned at 3:38 p.m.)

29a

CERTIFICATE OF REPORTER

STATE OF MICHIGAN )

) ss.

COUNTY OF WAYNE )

I, DENISE A. MOSBY, Official Court Reporter, in and

for the United States District Court in the Eastern Dis-

trict of Michigan, Southern Division, do hereby certify

that I reported stenographically the foregoing proceedings

at the time and place hereinbefore set forth; that the

same was thereafter reduced to typewritten form under

my supervision by means of computer-assisted transcrip-

tion; and I do further certify that this is a true and cor-

rect transcription of my stenographic notes so taken.

/s/ Denise A. Mosby

DENISE A. Mossy, RPR-CSR

Official Court Reporter

DATED: June 26, 1988