Day v. United Automobile, Aero. & Agr. Imp. Wkrs., Local 36

• Decision Date: 03 October 1972
• Docket Number: No. 71-1547.,71-1547.
• Citation: 466 F.2d 83
• Parties: Raymond DAY, Plaintiff-Appellant, v. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 36 OF UAW, and Ford Motor Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

466 F.2d 83 (1972)

Raymond DAY, Plaintiff-Appellant, v. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 36 OF UAW, and Ford Motor Company, Defendants-Appellees.

No. 71-1547.

United States Court of Appeals, Sixth Circuit.

July 27, 1972.

Rehearing Denied October 3, 1972.

COPYRIGHT MATERIAL OMITTED

James D. Jackson, Detroit, Mich., for appellant.

Edwin Fabre, Stanley Lubin, Detroit, Mich., Joseph A. O'Reilly, James R. Jackson, Dearborn, Mich., Bruce A. Miller, Zwerdling, Miller, Klimist & Maurer, Detroit, Mich., for appellees.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Plaintiff brought action against the Ford Motor Company, a Delaware corporation, for reinstatement as an employee, and for damages suffered by him as a result of Ford's wrongful discharge of him. He also brought action against appellee Union, of which he was a member, for breach of the duty owed to him of fair representation in the manner in which his grievance, regarding the discharge, was handled. Appellee Ford Motor Company and the Union filed motions for a summary judgment before hearing of the evidence, and the District Court granted such motions.

In granting appellees' motions for a summary judgment, the District Court accepted, as true, the allegations in appellant's complaint. The rule governing this case was stated in an earlier adjudication to the effect that where a defendant moved for a summary judgment, the court must accept allegations of complaint as true. Furton v. City of Menasha, 149 F.2d 945 (C.A.7). "On a motion for summary judgment made by defendants the facts alleged in the petition must be taken as true, unless by the admissions, depositions, and other evidence introduced, it appears beyond genuine controversy otherwise." McCombs v. West, 155 F.2d 601, 602 (C.A.5). In somewhat different language, the rule was stated: "On a motion for summary judgment, the pleadings of the opposing party must be taken as true, unless by the admissions, depositions or other material introduced it appears beyond controversy otherwise." Hiern v. St. Paul-Mercury Indemnity Company, 262 F.2d 526, 528 (C.A.5); and the court takes as true all well-pleaded facts contained in the complaint as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Pittsburgh Hotels Ass'n, Inc. v. Urban Redevelop. Auth., 202 F.Supp. 486 (W.D.Pa.). Facts alleged in a proposed supplemental complaint were required to be taken as true, where defendant filed a motion for summary judgment. McHenry v. Ford Motor Co., 269 F.2d 18 (C.A.6). The rule is sometimes stated: "On a motion for summary judgment, all facts of the complaint well pleaded stand admitted. On a consideration of such a motion, the court not only considers the allegations of the complaint but also all facts shown by depositions and affidavits concerning which there can be no dispute." Harris v. Railway Express Agency, 178 F.2d 8 (C.A.10). In Donahue v. Warner Bros. Pictures, 194 F.2d 6 (C.A.10), the court, in holding that a motion for summary judgment admits all matters well pleaded, stated: "While by answer many of the material allegations contained in the amended complaint were denied the motion for summary judgment admitted all matters well pleaded in such complaint. That was the posture of the case at the time the summary judgment was entered." A summary judgment movant admitted all facts that had been well pleaded by the plaintiff. Gore v. Northeast Airlines, Inc., 373 F.2d 717 (C.A.2).

The action of the District Court was in keeping with Rule 56(c) of the Federal Rules of Civil Procedure relating to summary judgments, which provides that such a judgment may be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law.

In this case there were no depositions, answers to interrogatories, or admissions of the plaintiff on file. The judgment was entered on the pleadings and on defendant's motion for summary judgment.

On appeal in this case, we accept as true appellant's allegations in his complaint, as did the District Court; and the statement of facts, which follows, is taken from the allegations of appellant's complaint and other admitted facts.

Appellant entered into an employment contract with the Ford Motor Company on March 30, 1965. After having successfully completed a 90-day period of probationary employment, he became a regular employee of the Company. He also became a member in good standing of appellee Union which was the bargaining agent of the employees at the plant where appellant was employed. He continued working at the Ford Motor Company for approximately three and a half years, until he was given a sick leave on August 12, 1968, to December 13, 1968. He had three and a half years' seniority at the time of his leave. When appellant was given the sick leave, he was earning $3.75 an hour as a paint sprayer. On the last day of appellant's sick leave, December 13, 1968, he was arrested and detained by police on a charge of murder.

The charge of murder arose out of the following circumstance: A Union official, of the same Local, had called appellant by telephone and told him he was on his way over to his home to kill him. Shortly after this telephone call, appellant killed the Union official in defense of himself and his family. For clarity at this point, it should here be mentioned that appellant was subsequently found not guilty of the charge of murder or of manslaughter.

When appellant was arrested on the murder charge, his wife immediately notified the Ford Motor Company of his involuntary absence, his detention, and of his intent to return to work. Appellant was released on bond on January 11, 1969, and at once went to the Ford plant accompanied by his wife and by his Union bargaining plant committeeman, Mr. L. L. Daniel, and spoke with Mr. Dick Echols, the labor relations representative of the Ford Motor Company. Mr. Echols required appellant to undergo a physical examination, and afterward told him that he would be reinstated if he was found to be not guilty of the murder charge.

Five days later, on January 16, 1969, during the period appellant was waiting for exoneration by the court of the charge of murder, a "disciplinary discharge" was signed by Mr. Echols and appellant's record was marked as "discharged." It is this discharge that the Company and the Union rely upon, although they assert the discharge was for appellant's "unsatisfactory attendance" while he was awaiting trial of the criminal case.

Counsel for appellant, throughout his argument and brief, emphasized that appellant had never received notice of the disciplinary discharge.

In reply to this contention, counsel for the Ford Motor Company states in his brief on appeal that "appellant's brief, as well as oral * * * argument below, also goes beyond the allegations in the Amended Complaint in claiming that the employee was discharged in absentia on January 16, 1969, with notice being given only to the Union." It is true that that particular allegation was not made in appellant's Amended Complaint. Counsel for the Company, arguing before the District Court, in saying that the allegation that appellant was discharged without notice could easily be disproven was, at this point, interrupted by the District Judge, who asked:

"By that you mean that there was notice sent?

"Counsel for the Ford Company: Yes. In fact the union representative signed the disciplinary action form, discharging appellant on January 16, 1969."

Obviously, counsel for the Ford Motor Company was arguing that notice was sent, because the Union representative signed the disciplinary discharge. And counsel went on to state that even if the allegation had been made that appellant was discharged in absentia without notice, that would not be a violation of the collective bargaining agreement, since the collective bargaining agreement states that, in the event of disciplinary action against an absent employee, notice of the action need only to be given to the Union. In no place does counsel state that any notice of the discharge was given to appellant. It seems grossly unfair and unjust that a Union employee, in good standing with the Union, and not guilty of any deficiency or misconduct toward the Company, could be summarily discharged from his employment and have all his seniority rights, pension rights, insurance and fringe benefits abolished, without notice to him.

Counsel for appellant in his argument before the District Court, and in his argument and brief before us, submits that, due to the various problems of the scattered units of a large company, "Local Agreements" and "Letters of Understanding" are needed to cope with problems and unique situations found in the local Unit; that the "Letters of Understanding" were negotiated by the Local of the Union to which appellant belonged, and are supplemental to, and in addition to the Main Agreement reached by the U.A.W. International and the Ford Motor Company; that such letters are designated the "Wixom Letters of Understanding" named after the Wixom plant of the Ford Company where appellant was employed; that the "Wixom Letters of Understanding" provide for a hearing with a Union representative present. Ford does not deny this, but submits that the "Wixom Letters of Understanding" were not made part of the record in this case; were not mentioned in the allegation of appellant; and hence cannot be considered. That is true. We cannot consider arguments based on such "Letters;" but, on a retrial, appellant may amend his allegations including the provisions of the "Wixom Letters of Understanding" that provide for a hearing in case of...