Brookins v. Chrysler Corporation, Dodge Main Division, Civ. A. No. 4-70388.

• Decision Date: 01 August 1974
• Docket Number: Civ. A. No. 4-70388.
• Citation: 381 F. Supp. 563
• Parties: Willie BROOKINS, Plaintiff, v. CHRYSLER CORPORATION, DODGE MAIN DIVISION (a corporation), et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

381 F. Supp. 563

Willie BROOKINS, Plaintiff, v. CHRYSLER CORPORATION, DODGE MAIN DIVISION (a corporation), et al., Defendants.

Civ. A. No. 4-70388.

United States District Court, E. D. Michigan, S. D.

August 1, 1974.

Wilfred C. Rice, Detroit, Mich., for plaintiff.

Keith A. Jenkins, Clifford L. Johnson, Detroit, Mich., for Chrysler Corp. John A. Fillion, Gen. Counsel, Edwin G. Fabre, Asst. Gen. Counsel Detroit, Mich., for defendant Unions.

MEMORANDUM OPINION

FEIKENS, District Judge.

Plaintiff sues Chrysler Corporation (Chrysler) for breach of contract, alleging that he was improperly discharged from employment, and the International Union, UAW, and its Dodge Local No. 3 (hereinafter referred to jointly as the union), alleging a breach of the union's duty of fair representation. Following removal of this case from the Wayne County Circuit Court, defendants moved for summary judgment.

Facts and Allegations

On September 7, 1967 (affidavit of Thomas Miner, based on Chrysler records) or September 11, 1967 (complaint ¶ 6), plaintiff was discharged from employment by Chrysler following an altercation with plant guards at the Hamtramck Assembly Plant. On September 17, 1967, the union filed a grievance protesting plaintiff's discharge. On January 21, 1969, plaintiff's attorney, Wilfred C. Rice, wrote Chrysler claiming that he and his client had made "numerous requests" through the union and the company for an investigation and hearing on plaintiff's discharge, but that his request for a hearing and arbitration of his grievance had in each instance been refused. The letter threatened a lawsuit if proceedings were not instituted immediately. Chrysler's reply informed Rice of the pending grievance and requested that he substantiate his charges by detailing when and by whom plaintiff and his attorney had been "stalled off" and who had refused a hearing on his grievance. There was apparently no further correspondence.

On January 26, 1970, the grievance, which had advanced to the last step before arbitration, was withdrawn by the union. There is no indication that plaintiff was ever formally notified of the termination and no clear evidence as to when he learned that his grievance had been withdrawn. An unsworn allegation in his brief indicates that it was only "recently", though no exact date is given. In his answers to interrogatories, dated January 21, 1974, plaintiff states on one occasion that he "is unaware that his grievance was withdrawn", and on two others that he "was unaware" of the withdrawal. Again, no dates are given. On August 27, 1973, plaintiff filed suit in Wayne County Circuit Court against both the union and Chrysler, alleging breach of contract, fraud, and breach of the duty of fair representation.

The Union's Motion

The union seeks summary judgment based on: (1) the running of the statute of limitations, (2) failure to plead facts sufficient to amount to a cause of action for breach of the duty of fair representation, and (3) failure to exhaust mandatory intra-union remedies. Only the last of these need be considered.

The union has submitted the affidavits of William Beckham and David Klein in support of its contention that plaintiff has never instituted an internal appeal of the union's decision to withdraw his grievance. Plaintiff has been highly evasive on this point. When asked to admit that he had not followed the various appeal procedures available to him, he denied that he had not, adding that "in any event, any attempts to do more than was done would have been a useless act of the plaintiff", or that "he at least attempted to do so". The answers to a subsequent set of interrogatories are even more confusing. When asked for details of his appeal to the local membership, he indicated that he did not know the exact dates and that only a handwritten request was made at the union office, of which no copies were kept. Several names were mentioned. Yet in this and subsequent answers plaintiff claimed that he was "unaware that his grievance had been withdrawn; he was always informed that steps were being taken to get his job back, seniority and back pay" (Answers to Interrogatories, no. 3). Other answers mention: the letter of January 21, 1969, in which plaintiff's attorney threatens Chrysler with suit if plaintiff's grievance is not processed; a trip to Solidarity House in the fall of 1968 (shortly after criminal charges filed against plaintiff growing out of the same altercation for which he was fired were either dismissed Answers to Interrogatories, no. 5 or were the subject of a jury verdict of acquittal plaintiff's brief at 2-3); and a general failure of memory and lack of records by the plaintiff. Plaintiff's brief does not seriously pursue or rely on a factual claim of compliance with the appeal procedures, but rather argues that compliance was unnecessary in this case.

From the above evidence it seems clear that plaintiff has unwittingly or deliberately confused his earlier efforts to prod the union into acting on his then-pending grievance (although he seems for a long time to have been unaware of its existence) with the procedures by which he was required to pursue an appeal of the union's later decision to withdraw the grievance. At no point does plaintiff allege that he took any action following the withdrawal of his grievance. It may therefore be taken as established for purposes of this motion as an undisputed fact that plaintiff did not pursue his intra-union remedies.

"Where, as here, there is no question as to the adequacy and mandatory nature of the intraunion remedies it is well settled that an exhaustion of the remedies is an indispensible prerequisite to the institution of a civil action against a union." Newgent v. Modine Mfg. Co., 495 F.2d 919 (7th Cir. 1974).

This rule is regularly applied in the Sixth Circuit, and is recognized in most others as well. See See v. Local 417, UAW, 480 F.2d 926 (6th Cir. 1973), aff'g 69 LC ¶ 13,165 (E.D.Mich.1972); Bsharah v. Eltra Corp., 394 F.2d 502 (6th Cir. 1968); Stringfield v. International Union, United Rubber Workers, 285 F.2d 764 (6th Cir. 1960), aff'g 190 F.Supp. 380 (E.D.Mich.1959); Whitmore v. Greyhound Lines, Inc., 71 LC ¶ 13,821 (E.D.Mich.1973); Cecil v. UAW, 71 LC ¶ 13,754 (W.D.Ky.1973); Dill v. Wood Shovel & Tool Co., 68 LC ¶ 12,685 (S.D.Ohio 1972); Imbrunnone v. Chrysler Corp., 336 F.Supp. 1223 (E. D.Mich.1971); Anderson v. Ford Motor Co., 319 F.Supp. 134 (E.D.Mich.1970); Harrington v. Chrysler Corp., 303 F. Supp. 495 (E.D.Mich.1969). See also Imel v. Zohn Mfg. Co., 481 F.2d 181 (10th Cir. 1973); Orphan v. Furnco Constr. Corp., 466 F.2d 795 (7th Cir. 1972); Foy v. Norfolk & W. Ry., 377 F.2d 243 (4th Cir.), cert. denied, 389 U. S. 848, 88 S.Ct. 74, 19 L.Ed.2d 117 (1967); Neal v. System Board of Adjustment, 348 F.2d 722 (8th Cir. 1965); Fingar v. Seaboard Air Line R. R., 277 F.2d 698 (5th Cir. 1960); Gainey v. Brotherhood of Ry. & S. S. Clerks, 275 F.2d 342 (3d Cir. 1959), cert. denied, 363 U.S. 811, 80 S.Ct. 1248, 4 L.Ed.2d 1153 (1960); Jenkins v. General Motors Corp., 364 F.Supp. 302 (D.Del.1973); Davis v. Local 242, Hod-Carriers & Gen. Laborers Union, 72 LC ¶ 14,033 (W.D. Wash.1973).

Because plaintiff here never initiated an appeal, it is unnecessary to consider how far an appeal must be carried to satisfy the requirements of exhaustion. Compare Ruzicka v. General Motors Corp., 336 F.Supp. 824, 826-827 (E.D. Mich.1968), with Anderson v. Ford Motors Co., supra, 319 F.Supp. at 137-138. And because there is no serious question as to the adequacy of the UAW's internal remedies, the only way in which plaintiff can escape the exhaustion requirement is by demonstrating the futility of pursuing them in his case. See, e. g., Glover v. St. Louis-S. F. Ry., 393 U. S. 324, 330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Buzzard v. Local 1040, IAMAW, 480 F.2d 35, 41-42 (9th Cir. 1973).

Of course, the grounds for claiming futility should be clearly set forth in the pleadings.

"It is incumbent upon the plaintiff as a condition to his seeking relief in this court to plead affirmatively that he has either exhausted his remedies as set forth upon the contract upon which he relies or to plead facts in avoidance of that obligation showing that such procedures would be futile." Sedlarik v. General Motors Corp., 54 F.R.D. 230, 233 (W.D.Mich.1971).

Plaintiff has claimed futility in only the most general and conclusory terms in his discovery and motion papers; there is nothing in the complaint. If the defect were merely one of pleading, the normal remedy would be to permit the plaintiff to amend his complaint. See, e. g., Sedlarik v. General Motors Corp., supra, 54 F.R.D. at 233. But where it is plain that there is no factual basis for the claim of futility, it would be useless to permit amendment of the complaint and summary judgment is proper.

Here the only argument in support of the claim of futility which plaintiff has presented is the contention in his brief that when he was informed by union officials his grievance had been withdrawn, he was also told that there was nothing more he could do about it and was never informed of his right to appeal the union's action in terminating the grievance. Rule 56(e) of the Federal Rules of Civil Procedure provides that:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The Rule also provides that:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The...