Harrison v. Arrow Metal Products Corp.

• Decision Date: 09 December 1969
• Docket Number: No. 1,AFL-CIO,Docket No. 3894,1
• Citation: Harrison v. Arrow Metal Products Corp., 174 N.W.2d 875, 20 Mich.App. 590 (Mich. App. 1969)
• Parties: , 73 L.R.R.M. (BNA) 2712 Ivanhoe HARRISON, Plaintiff-Appellant, v. ARROW METAL PRODUCTS CORPORATION, a Michigan corporation, and Local 155, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America,, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 875

174 N.W.2d 875

20 Mich.App. 590, 73 L.R.R.M. (BNA) 2712

Ivanhoe HARRISON, Plaintiff-Appellant, v. ARROW METAL PRODUCTS CORPORATION, a Michigan corporation and Local 155, International Union, United Automobile Aerospace and Agricultural Implement Workers of America AFL-CIO, jointly and severally, Defendants-Appellees.

Docket No. 3894.

Court of Appeals of Michigan, Division No. 1.

Dec. 9, 1969.

Rehearing Denied Feb. 6, 1970.

Released for Publication March 4, 1970.

James R. Barson, Alspector, Sosin & Mittenthal, Detroit, for plaintiff-appellant.

Fred J. Potvin, Potvin, Tunney & Lawrence, Detroit, for Arrow Metal Products Corp.

Jordan Rossen, Detroit, for UAW Local 155.

Before J. H. GILLIS, P.J., and R. B. BURNS and J. J. KELLEY, Jr., ^* JJ.

J. J. KELLEY, Jr., Judge.

In his complaint, dismissed by an order granting defendants' motions for accelerated judgment, plaintiff alleged substantially as follows:

On November 1, 1960, plaintiff who had been employed over 9 years by defendant Company filed a workmen's compensation claim for injury and disability. The claim was settled by redemption agreement on July 29, 1964, the scheduled date of hearing.

For several years plaintiff had been a member in good standing of defendant Union.

Company and Union had an agreement or understanding whereby the Company gave the Union barrels, each containing over 500 pairs of white cloth gloves which the Union sold to Company employees for 5 cents per pair. On August 13, 1964, after finding in plaintiff's automobile several pairs of gloves which plaintiff had purchased from the Union, Company officials falsely accused plaintiff of stealing gloves, and wrongfully discharged him.

After defendant Company refused to permit plaintiff to return to work, he sought employment elsewhere. When in response to their inquiries plaintiff told prospective employers that he had worked for defendant Company, the latter informed such prospective employers that he had worked for defendant Company, and that he had been discharged by defendant for theft of company property. On August 13, 1964, and unmerous times within one year before commencement of this action on May 13, 1966, defendant Company libeled and slandered plaintiff, including the writing of a letter to a prospective employer on April 20, 1966, which stated that plaintiff 'was discharged on August 13, 1964, for theft of company property.'

Because plaintiff filed the workmen's compensation claim, Company agents, officers and officials conspired to discharge him and to ruin his reputation, and prevented him from obtaining other employment by falsely and maliciously accusing plaintiff of theft when prospective employers sought employment references.

At the time of plaintiff's discharge there existed between the Company and Union a contract and working agreement for the benefit of members of the Union.

Defendant Company's acts and omissions were part of a wrongful conspiracy wherein Company and/or Union conspired to harm plaintiff and to deceive plaintiff's prospective future employers into believing he was not honest, thus tortiously interfering with his future employment.

Defendant Company wrongfully discharged plaintiff, Libeled, slandered and black-listed him, and tortiously interfered with his employment by deceiving his prospective employers into believing he had stolen Company property. Defendant Company 'and/or' defendant Union conspired to harm plaintiff, and each of their acts or omissions was part of a wrongful deliberate scheme.

To this complaint defendant Company filed an answer denying it had published any such statements. By way of affirmative defenses it pleaded: I. Plaintiff failed to utilize or exhaust remedies available to him under defendant Union's constitution and by-laws; II. Plaintiff's complaint alleges conduct within the exclusive primary jurisdiction of the NLRB under the NLRA; III. Statute of limitations; IV. Privilege; V. Truth.

Defendant Union did not file an answer, but did file a motion to require plaintiff to furnish a more definite statement of his claims against it. This motion was not decided.

Plaintiff demanded a trial by jury.

Each defendant filed a Motion for Accelerated Judgment, urging as grounds the same matters set forth as Company's affirmative defenses I, II, III. The court granted both motions on the grounds alleged, and, as to defendant Company, on the further basis that it enjoyed a qualified privilege in writing the letter to plaintiff's prospective employer. Plaintiff appeals, presenting four issues.

I. FAILURE TO UTILIZE OR EXHAUST REMEDIES UNDER DEFENDANT UNION'S CONSTITUTION AND BY-LAWS

Vaca v. Sipes (1967), 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, was decided after argument on defendants' motions in circuit court and very shortly before their determination. Apparently counsel failed to bring this case to the circuit court's attention.

Having reviewed several cases here cited by defendants, the court in Vaca concluded ¹ that action lies against the employer if its conduct in contractual grievance procedures amounted to a repudiation of such procedures; and that in the face of a defense besed upon failure to exhaust contractual remedies a wrongfully discharged employee may join both his employer and his union in one action in a state court, provided he can prove that the union as bargaining agent breached its duty of fair representation in its handling of his grievance. In the face of such a defense, an employee may show that it would have been futile to attempt to obtain relief through intraunion remedies. Knox v. Local 900, UAW-CIO (1960), 361 Mich. 257, 259--260, 104 N.W.2d 743.

Sufficiency of proof of futility or of Union's breach or of Company's repudiation depends substantially upon terminology of the Union constitution and of the Union-Company contract. Cortez v. Ford Motor Company (1957), 349 Mich. 108, 84 N.W.2d 523. Although defendants referred to defendant Union's by-laws, no copy of them appears in the record.

Defendant Union's constitution required it to carry out the provisions of its Union-Company contracts, and denied its officers, members, representatives or agents any power or authority to counsel, cause, initiate, participate in or ratify any action which constituted a breach of such contract. ² Defendants' contract provided not only general grievance procedure ³ but specific action in cases of unjust or discriminatory dismissals. ⁴ By use of language Mandatory in form, it Required the following actions, each being dependent upon those preceding:

A. Upon discharging an employee, company Shall immediately notify the Executive Shop Committee shift steward.

B. Complaint regarding the dismissal Shall be reduced to writing in triplicate by the steward,

C. and each copy Shall be signed by the employee and the steward filing the grievance,

D. and two copies Shall be given to the foreman Within 24 hours after notification of the steward by company, E. and the company representative Must render a decision in writing Within 48 hours of its receipt.

Defendant's contract further provided that any grievance or complaint Not appealed following the company's decision within five (5) working days in any of the above steps shall be considered closed. However, the contract contained no further provision regarding appeal. Articles 31 and 32 of defendant Union's Constitution provided for appeals, but only to challenge decisions of union bodies.

As to following the first 5 steps, there was no discretion in Union representatives, as was present in Cortez v. Ford Motor Company, Supra.

In a legal action such as the present case, an 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. Knox v. Local 900, Supra; Howland v. Local Union 306, UAW-CIO (1948), 323 Mich. 305, 35 N.W.2d 166; Vaca v. Sipes, Supra.

Upon determination of a motion for accelerated judgment, well pleaded facts are accepted as true. Cortez v. Ford Motor Company, Supra, 349 Mich. 113, 84 N.W.2d 523. Contents of affidavits may also be considered. GCR 1963, 116.3.

Via affidavit and complaint plaintiff states:

'That his Union Steward * * * was present when he was discharged and knew that said charges were false and told Plaintiff not to worry about anything in that the Union 'will push it' and he would get his job back. A meeting of the Union members was subsequently held and the membership voted against a strike. However, only about fifteen members were present at this meeting.

'Mr. * * * was in charge of the meeting for the Union and had told the membership that the Union should give IVANHOE HARRISON his job back if it would go on strike. After the strike vote Mr. * * * told IVANHOE HARRISON that 'the Union can't do anything for you' and that he would try to get IVANHOE HARRISON a job at General Motors Corporation making more money, which was not done.

'At no time was IVANHOE HARRISON given a copy of the Union Constitution or By-Laws. When he was told by Mr. * * * that there was nothing else the Union could do for him after the membership voted against a strike he believed that the matter was ended as far as the Union was concerned.

'* * * plaintiff has exhausted such administrative remedies as were available to him at the time of filing this action in that all remedies contained and provided for in the said contract and working agreement which have not been attempted by the plaintiff were not longer available to the plaintiff at the time of filing this suit because of the lapse of the specified time periods and because defendant Union had failed to take the septs preparatory to obtaining the said remedies as provided in the said contract and working agreement, although requested by plaintiff to do so.'

The steward's personal presence at...