Balowski v. INTERNATIONAL U., UNITED A., A. & A. IMP. WKRS.

• Decision Date: 20 February 1967
• Docket Number: 17060.,No. 17059,17059
• Citation: 372 F.2d 829
• Parties: John BALOWSKI, Plaintiff-Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UAW), AFL-CIO, and Its Local Union No. 735, Defendants-Appellants. John BALOWSKI, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

372 F.2d 829 (1967)

John BALOWSKI, Plaintiff-Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UAW), AFL-CIO, and Its Local Union No. 735, Defendants-Appellants.

John BALOWSKI, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Nos. 17059, 17060.

United States Court of Appeals Sixth Circuit.

February 20, 1967.

Stephen I. Schlossberg, Detroit, Mich. (Joseph L. Rauh, Jr., John A. Fillion, Jordan Rossen, Bernard F. Ashe, Michael S. Friedman, Detroit, Mich., on the brief), for International Union and others.

Eugene L. Hartwig, Detroit, Mich. (Aloysius F. Power, Harry S. Benjamin, Jr., K. Douglas Mann, Eugene L. Hartwig, George Cherpelis, Detroit, Mich., on the brief), for General Motors Corp.

Dee Edwards, Detroit, Mich., for appellee.

Before PHILLIPS and PECK, Circuit Judges, and FOX, District Judge.^*

HARRY PHILLIPS, Circuit Judge.

This is an interlocutory appeal under 28 U.S.C. § 1292(b) from the order of the district court denying defendants' motions for summary judgment.¹ The action was filed against General Motors Corporation and the international and local Unions, UAW, AFL-CIO, under § 301 (a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). The parties will be referred to as they appeared in the district court.

Plaintiff, an employee of General Motors, had acquired certain seniority rights as a journeyman tinsmith. He took medical leave in 1957 because of a physical disability. In 1958 his reinstatement application with General Motors was denied after a medical examination, on the ground that he was unable to perform the duties of his former job classification. In 1959 plaintiff caused a grievance to be filed by the local Union.

The collective bargaining agreement between General Motors and the United Automobile Workers provided for a detailed four-step grievance procedure which terminated in final and binding arbitration of employee grievances before either an impartial umpire, or by a mutually agreed upon independent physician, depending upon the type of grievance filed.

Step one of the grievance procedure required the presentation of the grievance to the shop foreman; step two required the grievance to be referred to the shop committee; step three was an appeal to the corporation and the international union; and step four was an appeal to an impartial umpire.

Plaintiff's grievance remained at the third step of the grievance procedure until 1961. Following a discussion of the grievance at the Appeal Committee and management's refusal to accede to the demands made therein, the Union made a timely appeal of the case to the impartial umpire. Thereafter at the request of the Union the grievance was returned to the second step of the grievance procedure, ultimately reaching the umpire stage in December 1961.

In September 1961 plaintiff had filed suit against General Motors in the district court under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), seeking to join the international and local Unions as involuntary plaintiffs. In that action plaintiff demanded arbitration in accordance with the collective bargaining agreement. The district court dismissed that suit in January 1962 for lack of jurisdiction, on the ground that the grievance procedure prescribed by the collective bargaining agreement had not yet been exhausted.

In April 1962, in accordance with the provisions of the collective bargaining agreement, the grievance was submitted to an independent physician, who was mutually acceptable to General Motors and the Union, for a final and binding determination as to whether plaintiff was able to perform the duties of the journeyman tinsmith classification, his former position.

Based upon his examination of plaintiff, the physician found that plaintiff was unable to perform the duties of this job classification. The Union withdrew the grievance of plaintiff at that time.

Plaintiff then brought this suit demanding $350,000 in damages against General Motors and the international and local Unions, alleging (1) that the referral of his grievance to the arbitrator was a sham since it was not reasonably contemporaneous with his application to return to work and that the question submitted to the arbitrator was not the same question as presented by the grievance; (2) that defendant Unions breached their duty to process plaintiff's grievance promptly, diligently and in good faith; and (3) that defendant General Motors breached plaintiff's rights under the collective bargaining agreement by failing, refusing and neglecting to permit plaintiff to resume his employment. The district court denied the motions of General Motors and the Unions for summary judgment. This appeal under 29 U.S.C. § 1292(b) ensued.

1) The Arbitration Decision

The principal contention of plaintiff is that the question presented in the grievance which he filed in 1959 was not the same question which was presented to the impartial physician in 1962. He asserts that the question is whether he was physically able to perform the duties of his job classification and therefore entitled to reinstatement in 1958, whereas the question presented to the physician was whether he was able to return to work in 1962, the time of the submission of the question to arbitration. The Unions and General Motors take the position that the decision of the arbitrator is binding and conclusive upon plaintiff and that this question cannot be relitigated by an action under § 301.

As was said in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403:

"Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat. 154, 29 U.S.C. § 173(d), states, `Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. * * *\' That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play."²

Further "arbitration is a stabilizing influence only as it serves as a vehicle for handling any and all disputes that arise under the agreement." (Emphasis added.) 363 U.S. at 567, 80 S.Ct. at 1346.

The Court further said:

"The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. * * * The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious." 363 U.S. at 567-568, 80 S.Ct. at 1346.

As said in Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 617, 13 L.Ed.2d 580. "If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement."

To like effect see Local 174 Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593.

With regard to the finality of an arbitrator's award the Supreme Court has stated that:

"This plenary review by a court of the merits would make meaningless the provisions that the arbitrator\'s decision is final, for in reality it would almost never be final. * * * The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator\'s construction which was bargained for; and so far as the arbitrator\'s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424.

Paragraph 43(b) of the collective bargaining agreement between General Motors and the Unions provide that the arbitrator's decision (in this case an independent physician's decision), "with respect to whether the employee is or is not able to do a job to which he is entitled in line with his seniority shall be final and binding upon the Union, the employee involved and the Corporation."³ This is what was bargained for by the parties to the collective bargaining agreement. We re-emphasize that in his first action, plaintiff demanded arbitration in accordance with § 43(b) of the agreement. He now has been accorded this relief, but disagrees with the decision of the arbitrator. It is apparent that what plaintiff is attempting to do is to relitigate his grievance in this proceeding. This he cannot do when the collective bargaining agreement provides for final and binding arbitration of all disputes, absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer. Cf. Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246.

The Memorandum of Understanding between General Motors and the Union under which the grievance was submitted to arbitration in the present case was in conformity with Section 43(b) of the collective bargaining agreement (footnote 3). Under this Memorandum the arbitrator was authorized to make a determination as to plaintiff's physical ability to perform the job of journeyman tinsmith either as of the date of the examination or as of November 11, 1958, or July 25, 1960.

The arbitrator found that: "this man is not a...