Lowe v. Hotel and Restaurant Emp. Union, Local 705
| Decision Date | 27 September 1971 |
| Docket Number | No. 1,Docket No. 9513,1 |
| Citation | 36 Mich.App. 66,193 N.W.2d 376 |
| Parties | , 79 L.R.R.M. (BNA) 2527, 67 Lab.Cas. P 12,358 Richard LOWE, Plaintiff-Appellee, v. HOTEL & RESTAURANT EMPLOYEES UNION, LOCAL 705, and Myra Wolfgang, jointly andseverally, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Ernest Goodman, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, for defendants-appellants.
Eddie D. Smith, Detroit, for plaintiff-appellee.
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 Y.W.C.A.). 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 Y.W.C.A. 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 dischrge 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 1 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.
Plaintiff then turned to the courts for relief. He commenced an action against the Y.W.C.A., 2 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.
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 (CA 9, 1970), 427 F.2d 996; Anderson v. Ford Motor Company (E.D.Mich.1970), 319 F.Supp. 134; Mayo v. Great Lakes Greyhound Lines (1952), 333 Mich. 205, 52 N.W.2d 665; Knox v. Local 900, etc., UAW-CIO (1960), 361 Mich. 257, 104 N.W.2d 743.
However, narrow exceptions, when satisfied, have remove 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, 35 N.W.2d 166; 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, 174 N.W.2d 875, leave 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, 20 Mich.App. p. 603, 174 N.W.2d p. 881.
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, 3 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, 386 U.S. at 186, 87 S.Ct. at 914, 17 L.Ed.2d at 855; see also Harrison v. Arrow Metal Products Corporation, Supra, 20 Mich.App. at 617--628, 174 N.W.2d 875 (J. H. Gillis, J., concurring in part, dissenting in part).
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. 4 Cortez v. Ford Motor Company (1957), 349 Mich. 108, 84 N.W.2d 523; 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.
'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, 386 U.S. at 177, 87 S.Ct. at 910, 17 L.Ed.2d at 850. In exercising its discretion, the untion 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, 437 F.2d at 171. In so doing,
Vaca v. Sipes, Supra, 386 U.S. at 191, 87 S.Ct. at 917, 17 L.Ed.2d at 858. Also see: Encina v. Tony Lama Company (W.D.Tex.1970), 316 F.Supp. 239, 244. 5
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, 386 U.S. 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, 386 U.S. 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. (S.D.N.Y.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, 386 U.S. at 193--195, 87 S.Ct. at 918, 919, 17 L.Ed.2d at 859, 860; Gottschling v. Square D Company (E.D.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, 386 U.S. 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. 6 Field v. Local 652, UAW AFL-CIO (1967), 6 Mich.App. 140, 148 N.W.2d 552. Accord: Hardcastle v. Western Greyhound Lines (CA 9, 1962), 303 F.2d 182; Turley v. Hall's Motor Transit Company ...
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