Opinion
Docket No. 9513.
Decided September 27, 1971. Leave to appeal granted, 386 Mich. 777.
Appeal from Wayne, Neal Fitzgerald, J. Submitted Division 1 May 4, 1971, at Detroit. (Docket No. 9513.) Decided September 27, 1971. Leave to appeal granted, 386 Mich. 777.
Complaint by Richard Lowe against the Young Women's Christian Association for wrongful discharge, against the Hotel Restaurant Employees Union, Local 705, and Myra Wolfgang for failure to process his grievance in good faith, and against both the union and the YWCA for conspiring against him to deprive him of his employment. Judgment for plaintiff. Defendants union and Myra Wolfgang appeal. Reversed and remanded.
Eddie D. Smith, for plaintiff.
Goodman, Eden, Robb, Millender, Goodman Bedrosian, for defendants Hotel Restaurant Employees Union, Local 705, and Myra Wolfgang.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
Plaintiff Richard Lowe was a member of defendant Local 705, Hotel and Restaurant Employees Union, at the time he was employed as a maintenance man by the Young Women's Christian Association (hereafter referred to as YWCA). The terms of employment were controlled by the collective bargaining agreement between the employer and Local 705, among others.
Plaintiff was discharged in 1963 by the YWCA after an alleged altercation between him and a female supervisor. It was the personnel policy of the employer to dismiss employees who were involved in employment trouble after previously having received two disciplinary letters. Plaintiff received written disciplinary warnings on two separate occasions, in 1958 and 1962.
After his discharge, plaintiff filed a grievance with his union representative alleging that the employer had breached the collective bargaining agreement by discharging him. A union representative investigated the facts surrounding plaintiff's grievance. The results of the investigation were reported to the union's Grievance Committee, and the committee concluded that plaintiff's discharge was for good cause. Plaintiff appealed to the union's Joint Executive Board, which affirmed the Grievance Committee's finding. Following denial of his grievance, plaintiff wrote an informal letter to the general president of the international union. The response plaintiff received urged him to take his grievance back to the local union secretary-treasurer, Mrs. Myra Wolfgang, also a defendant herein.
The union's constitution provides that appeals from local decisions can be taken to the general president, and in turn the president's decision may be appealed to the general executive board; this decision may be appealed to the convention of the international union. Constitution of the Hotel and Restaurant Employees and Bartenders International Union, of 1961, article 20, § 11. Plaintiff did not formally appeal the decision of the Joint Executive Board to the international union's general president.
Plaintiff then turned to the courts for relief. He commenced an action against the YWCA, the union, and Mrs. Wolfgang, alleging that he was wrongfully discharged, that the employer and union conspired against him to deprive him of his employment, and that the union failed to process his grievance in good faith.
Plaintiff settled with the Young Women's Christian Association before the trial commenced.
At the close of plaintiff's proofs, the trial court granted a partial directed verdict in defendants' favor, GCR 1963, 515.1. The court ruled that plaintiff failed to establish a prima facie case of conspiracy. The issue of good faith representation went to the jury, and they returned an award of $7990 for plaintiff.
Defendants raise two issues on appeal. They first contend that the trial court erred in denying their motion for summary judgment, GCR 1963, 117.2(1). They argue that plaintiff failed to exhaust his intra-union remedies before seeking judicial redress. The defense buttresses its' argument with the settled doctrine that, generally, aggrieved union members must exhaust their union remedies before seeking judicial redress. This is likewise a substantial Federal and state law of collective bargaining. Republic Steel Corporation v. Maddox (1965), 379 U.S. 650 ( 85 S Ct 614, 13 L Ed 2d 580); Seay v. McDonnell Douglas Corporation (CA9, 1970), 427 F.2d 996; Anderson v. Ford Motor Company (ED Mich, 1970), 319 F. Supp. 134; Mayo v. Great Lakes Greyhound Lines (1952), 333 Mich. 205; Knox v. Local 900, UAW-CIO (1960), 361 Mich. 257.
However, narrow exceptions, when satisfied, have removed the complainant's cause of action from beneath the tutelage of the exhaustion doctrine. Howland v. Local Union 306, UAW-CIO (1948), 323 Mich. 305; Vaca v. Sipes (1967), 386 U.S. 171 ( 87 S Ct 903, 17 L Ed 2d 842).
This Court's holding in Harrison v. Arrow Metal Products Corporation (1969), 20 Mich. App. 590, leave to appeal denied (1970), 383 Mich. 816, is dispositive. There, the majority held that the aggrieved employee
"must allege facts from which it may be reasonably inferred either that he duly exhausted his union remedies, or that resort to such remedies would be ineffective, if not futile, or that the union breached its duty of fair representation." Harrison v. Arrow Metal Products Corporation, supra, p 603.
Plaintiff, in his amended complaint, alleged that the employer and union conspired against him, and that the union breached its duty of fair representation. Despite the questionable adequacy of plaintiff's complaint, the trial court, once satisfied that plaintiff had stated a cause of action, did not err in accepting jurisdiction over this matter. Vaca v. Sipes, supra, at 186 ( 87 S Ct at 914, 17 L Ed 2d at 855); see also Harrison v. Arrow Metal Products Corporation, supra, 617-628 (J.H. GILLIS, J., concurring in part, dissenting in part).
The trial court, prior to trial, granted defendants' motion for summary judgment because plaintiff's complaint failed to state a cause of action, GCR 1963, 117.2(1). Plaintiff's original complaint was based solely upon conclusionary terms. Plaintiff amended his complaint to include the conspiracy count, and the trial court granted his motion for reinstatement solely upon the addition of this second count. After the close of plaintiff's proofs, the trial court granted defendants' motion for directed verdict on the conspiracy count, GCR 1963, 515.1. The court permitted plaintiff's case to go to the jury on the alleged breach of the duty of fair representation, i.e., the count in plaintiff's original complaint which failed to state a cause of action. The court, in doing so, commented upon the scant amount of evidence:
"The Court: I don't think there is any question of conspiracy. But there may be a question of whether the union acted in good faith in what they did. I think that is a question for the jury. * * * I don't know what testimony there is. There isn't much testimony to go on. I mean, what is the jury going to consider when they get down to good faith? What is the bad faith, outside of the fact that the man lost his job?
"Mr. Smith [ counsel for plaintiff]: The bad faith is, here is a man who has been employed for 14 years. He has been here a shop steward.
"The Court: But they have no obligation to take his word.
"Mr. Smith: They don't have the obligation —
"The Court: Isn't the whole thing going to come down to whose word the jury takes [when] they examine this thing?
"Mr. Smith: Yes.
"The Court: Unless you can prove that he had malice toward this man, or something of that sort. And there is no testimony of malice."
Plaintiff's complaint alleged insufficient facts to support its allegation of breach of the duty of fair representation. GCR 1963, 111.9; Knox v. Local 900, UAW-CIO (1960), 361 Mich. 257, 259 260; McCann v. Local 12075, UMW (1967), 6 Mich. App. 720, 725; Mandel v. Highway and Local Motor Freight Drivers Union (SD NY, 1964), 246 F. Supp. 805; Local 13, International Longshoremen's Warehousemen's Union v. Pacific Maritime Association. (CD Calif, 1967), 278 F. Supp. 755, 766.
However, since the trial court let this case go to the jury, on the substantive issue, we feel constrained to now review that issue.
The heart of plaintiff's suit is rooted in his allegation that defendants breached their duty of fair representation. Plaintiff argues that he was discharged for insufficient cause, and furthermore that the union's investigation should have disclosed this. He concludes that the union failed to represent him in the utmost good faith when it refused to take his grievance to arbitration.
The fiduciary duty of fair representation in the administration and enforcement of collective bargaining agreements has been imposed upon unions by federal law. Cortez v. Ford Motor Company (1957), 349 Mich. 108; Brady v. Trans World Airlines, Inc. (CA 3, 1968), 401 F.2d 87, 94, cert den 393 U.S. 1048 ( 89 S Ct 681, 21 L Ed 2d 691); Sciaraffa v. Oxford Paper Company (D Me, 1970), 310 F. Supp. 891, 901. This obligation is correlative to the right of a union to represent all the employees in a bargaining unit as their exclusive agent, despite opposition from a minority. Bazarte v. United Transportation Union (CA 3, 1970), 429 F.2d 868, 871. Similarly, the employee has made personal concessions to achieve collective solidarity.
See: Vaca v. Sipes (1967), 386 U.S. 171 ( 87 S Ct 903, 17 L Ed 2d 842); Humphrey v. Moore (1964), 375 U.S. 335 ( 84 S Ct 363, 11 L Ed 2d 370); Ford Motor Company v. Huffman (1952), 345 U.S. 330 ( 73 S Ct 681, 97 L Ed 1048). Also see generally, Lewis, "Fair Representation in Grievance Administration: Vaca v. Sipes", 1967 Supreme Court Rev 81; Cox, "Rights Under a Labor Agreement," 69 Harv L Rev 601 (1956).
"The employee has gained bargaining strength through representation by his union but has surrendered his right to make `the law of the job,' and his interests are subordinated to those of the bargaining unit as a whole." Harris v. Chemical Leaman Tank Lines, Inc., (CA 5, 1971), 437 F.2d 167, 171.
Part of a union's duty of fair representation is 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, supra, at 177 ( 87 S Ct at 910, 17 L Ed 2d at 850). In exercising its discretion, the union has the power "to sift out frivolous grievances, to abandon processing of a grievance which it determines in good faith to be meritless, and to settle disputes with the employer short of arbitration". Harris v. Chemical Leaman Tank Lines, Inc., supra, at 171. In so doing,
"the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved." Vaca v. Sipes, supra, at 191 ( 87 S Ct at 917, 17 L Ed 2d at 858). Also see: Encina v. Tony Lama Company (WD Texas, 1970), 316 F. Supp. 239, 244.
It has been a long-standing principle of labor law that union action which is taken honestly and with deliberation will not be disturbed. Humphrey v. Moore, supra, at 355 ( 84 S Ct at 375, 11 L Ed 2d at 385); Ford Motor Company v. Huffman, supra, at 338 ( 73 S Ct at 686, 97 L Ed at 1057). This principle is cited with approval in Brown v. Truck Drivers and Helpers Local Union No 355 of Baltimore, Maryland (D Md, 1968), 292 F. Supp. 125, 128: Ferrara v. Pacific Intermountain Express Company (ND Ill, 1969), 301 F. Supp. 1240, 1244; Bartels v. New York Lithographers and Photo-Engravers' Union No. One-P (SD NY, 1969), 306 F. Supp. 1266, 1271; aff'd 431 F.2d 1205.
Furthermore, it is the policy of the Labor Management Relations Act, § 203(d), 61 Stat 153, 29 USCA § 173(d), to encourage that the final adjustment of disputes be resolved by the method settled upon by the parties. Therefore, unless the union is shown to have acted in bad faith, differences of opinion will be resolved in the union's favor. Anno: "Union-Failure to Process Grievances", 34 ALR 3d 884; and Slagley v. Illinois Central Railroad Company (CA 7, 1968), 397 F.2d 546.
However, this doctrine of fair representation does not confer on an employee the absolute right to press his grievance all the way through the last stage of the grievance procedure, as that procedure is made possible in the collective bargaining agreement. Vaca v. Sipes, supra, at 190-193 ( 87 S Ct at 916-918; 17 L Ed 2d at 857-859). Refusal of a union to take the grievance to arbitration does not per se amount to a breach of the duty of fair representation. Lomax v. Armstrong Cork Company (CA 5, 1970), 433 F.2d 1277, 1281. To allow an individual employee to compel arbitration of his grievance, regardless of its merit, would weaken and undermine the collective bargaining process. Vaca v. Sipes, supra, at 191 ( 87 S Ct at 917, 17 L Ed 2d at 858). The employee, therefore, is subject to the union's discretionary power to settle or even to abandon a grievance, so long as the union does not violate its duty of fair representation. Brandt v. United States Lines, Inc. (SD NY, 1964), 246 F. Supp. 982.
Consequently, the aggrieved employee who challenges a union's actions is obligated to demonstrate more than that his grievance, viewed with hindsight, had merit. Vaca v. Sipes, supra, at 193-195 ( 87 S Ct at 918, 919; 17 L Ed 2d at 859, 860); Gottschling v. Square D Company (ED Wis, 1969), 301 F. Supp. 1349, 1353. Rather, a breach of the statutory duty of fair representation is established only when the union's conduct toward the complaining employee has been shown to be arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, at 190 ( 87 S Ct at 916, 17 L Ed 2d at 857). It is therefore essential to plaintiff's claim that there should have been proof of "arbitrary or bad faith conduct on the part of the union in processing his grievance". Vaca v. Sipes, supra, at 193 ( 87 S Ct at 918, 17 L Ed 2d at 859). Plaintiff carries a strong burden of proof, and this necessitates a showing that the union's motivation was improper or hostile. Field v. Local 652, UAW AFL-CIO (1967), 6 Mich. App. 140. Accord: Hardcastle v. Western Greyhound Lines, (CA 9, 1962), 303 F.2d 182; Turley v. Hall's Motor Transit Company (MD Pa, 1969), 296 F. Supp. 1183, 1187; St. Clair v. Local Union No. 515 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (CA 6, 1969), 422 F.2d 128, 132; Simberlund v. Long Island R. Co. (CA 2, 1970), 421 F.2d 1219, 1224.
Whether the aggrieved employee has been treated in a fair and impartial manner depends, to some extent, upon the actor's motivation. For a further discussion see Cox, "The Duty of Fair Representation," 2 Villanova L Rev 151 (1957). An inquiry into defendant's motivation has also been a prerequisite to a finding of breach of the duty of fair representation in numerous cases.
It is not enough that the defendant union has acted improperly, the union must have acted with malice or hostility. DeArroyo v. Sindicato De Trabajadores Packinghouse, AFL-CIO (CA 1, 1970), 425 F.2d 281, 284. Accord: Brady v. Trans World Airlines, Inc. (CA 3, 1968), 401 F.2d 87, 104, cert den 393 U.S. 1048 ( 89 S Ct 680, 21 L Ed 2d 691); Bruen v. Local 492, International Union of Electrical, Radio and Machine Workers, AFL-CIO (D NJ, 1969) 313 F. Supp. 387, 392, aff'd 425 F.2d 190; Balowski v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (CA 6, 1967), 372 F.2d 829, 834; Meola v. Bethlehem Steel Company (1967), 246 Md. 226 ( 228 A.2d 254); Guille v. Mushroom Transportation Company (1967), 425 Pa. 607 ( 229 A.2d 903). However, if a grievance which has merit is ignored or handled in a perfunctory manner, this may constitute a breach of the duty to fairly represent. Vaca v. Sipes, supra, at 194 ( 87 S Ct at 919, 17 L Ed 2d at 860). Consequently, negligence coupled with improper motivation could amount to a breach of duty. St. Clair v. Local Union No. 515 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (CA 6, 1969), 422 F.2d 128, 130; Seay v. McDonnell Douglas Corporation (CA 9, 1970), 427 F.2d 996, 1000. Therefore, Sims v. United Papermakers Paperworkers, AFL-CIO (1970), 26 Mich. App. 129, should be read cautiously.
Here, the proofs considered in the light most favorable to plaintiff showed that he had been involved in an altercation with a female supervisor and that on two previous occasions he had received warning letters. A thorough investigation was made by the union, after which, plaintiff was given numerous opportunities to present his version of the incident. Several union hearings and re-hearings were held before the union decided not to press the grievance to arbitration.
Aggrieved employees should not equate lack of success with bad faith representation. Acuff v. United Papermakers and Paperworkers (CA 5, 1968), 404 F.2d 169, 171.
The test is not success or failure, or whether the grievance had merit, but rather whether the union breached its duty of fair representation by dealing with plaintiff's claim in a bad-faith or arbitrary manner. The evidence introduced at trial falls short of this test. Bieski v. Eastern Automobile Forwarding Company (CA 3, 1968), 396 F.2d 32, 37; Watson v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (CA 5, 1968), 399 F.2d 875, 880; Fabian v. Baltimore and Ohio R. Co. (ND Ohio, 1970), 320 F. Supp. 573.
Nowhere in the record are we able to find evidence that the union acted arbitrarily or in bad faith. Instead, this record rebuts plaintiff's contentions. The record shows the union pursued plaintiff's grievance vigorously, and that it was only after a complete investigation of the facts surrounding plaintiff's discharge that the union took the position not to further act on the grievance. The decision not to demand arbitration does not amount to an abuse of the union's discretion. Plaintiff failed to advance evidence that this position was taken dishonestly and with hostility. From our review of the record, we conclude that the union acted "upon wholly relevant considerations, [and] not upon capricious or arbitrary factors". Humphrey v. Moore, (1963), 375 U.S. 335, 350 ( 84 S Ct 363, 372; 11 L Ed 2d 370, 382).
Even if plaintiff's grievance is now seen to be meritorious, it is not the function of a court to make such an inquiry. Rather, it is incumbent upon plaintiff to plead and prove that the union treated his grievance in an arbitrary, discriminatory, or bad-faith manner, regardless of the grievance's merit. Vaca v. Sipes, supra, at 192, 193 ( 87 S Ct at 917, 918; 17 L Ed 2d at 859); Simberlund v. Long Island Railroad Company (CA 2, 1970), 421 F.2d 1219, 1225; Bowen v. Lockheed-Georgia Company (ND Ga, 1970), 309 F. Supp. 1210, 1213; Gottschling v. Square D Company (ED Wis, 1969), 301 F. Supp. 1349, 1353; Wheeler v. Brotherhood of Locomotive Firemen and Enginemen (D SC, 1971), 324 F. Supp. 818, 828; DeMarco v. Thatcher Furnace Company (1968), 102 N.J. Super. 258 ( 245 A.2d 773).
Since there is insufficient proof to support the verdict, the judgment of the trial court is vacated and this case is remanded with direction to take proceedings not inconsistent herewith.
Reversed and remanded.
V.J. BRENNAN, J., concurred.
The majority does not deny that the trial court properly accepted jurisdiction in this cause. Rather, they hold that plaintiff failed to establish that the union breached its duty of fair representation.
It is, of course, essential to plaintiff's cause that he prove that the union's conduct was arbitrary or in bad faith. Vaca v. Sipes (1967), 386 U.S. 171, 193 ( 87 S Ct 903, 918; 17 L Ed 2d 842, 859). However, whether a union is guilty of such conduct depends upon the facts of each case.
Trotter v. Amalgamated Association of Street Electric Railway (CA 6, 1962), 309 F.2d 584.
Plaintiff testified that he had not been in any fight but that he merely held the arm of the woman involved to keep from being struck himself. He also testified that he had brought the previous warning letters written by his employer to the attention of the union but that nothing had been done about them despite the fact that he had given the YWCA no cause to issue said letters. Plaintiff also testified that at his various meetings with the union he was given no consideration and further that he had been told by the Executive Director of the YWCA that the YWCA and the union had decided together to discharge him. Plaintiff's testimony, if true, would establish conduct on the part of the union amounting to a breach of the union's duty of fair representation.
Such conduct on the part of the union would be sufficient to establish a hostile discrimination against the plaintiff. This the union may not do. See Trotter v. Amalgamated Association of Street Electric Railway, supra, at 586.
Admittedly, there was evidence on the other side. However, this framed the question of fact for the jury and they, after viewing the witnesses and hearing all of the evidence, found for the plaintiff; this Court does not set aside jury verdicts unless the evidence preponderates in the opposite direction. Totok v. Elfstrom (1966), 4 Mich. App. 705, 709.
It is my opinion that there is sufficient evidence, if believed by the jury, to support the verdict rendered. Accordingly, I would affirm the trial court.