Nichols v. National Tube Co., Civ. No. 27597.

• Decision Date: 13 May 1954
• Docket Number: Civ. No. 27597.
• Citation: 122 F. Supp. 726
• Parties: NICHOLS v. NATIONAL TUBE CO.
• Court: U.S. District Court — Northern District of Ohio

122 F. Supp. 726

NICHOLS v. NATIONAL TUBE CO.

Civ. No. 27597.

United States District Court, N. D. Ohio, E. D.

May 13, 1954.

Levin & Levin, Lorain, Ohio, for plaintiff.

James C. Davis, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant.

JONES, Chief Judge.

The plaintiff Nichols was in the employ of the defendant Company for approximately twenty-seven years, — the last twenty-five years of that time continuously, in its coke plant at Lorain, Ohio. He was a member of the Local Chapter of a National or International Union having a collective bargaining contract with the defendant, executed March 13, 1945, extending to April 22, 1947.

On May 17, 1946, he was called from his work to the Company office and told for the first time that his employment with the Company would be terminated as of May 31, 1946, for the sole reason that he had attained the age of 65 years and because of the Company's policy of compulsory retirement of its employees at that age. He seeks damages upon the claim that he was wrongfully discharged, in violation of his rights under the labor contract in effect at the time and without any cause or reason such as required for discharge or termination of employment by the conditions of the bargaining agreement.

Stripped of its many seeming technical issues, I think the case comes down to the single question of what rights the plaintiff had as an employee of the defendant under the collective bargaining agreement of 1945 in effect at the time of his compulsory retirement as of May 31, 1946.

The defendant sets up numerous grounds for denial of any rights claimed by him and several affirmative contentions why it has no responsibility to the plaintiff.

It is conceded that plaintiff's employment was terminated by the defendant upon the sole ground that he had reached the age of 65 years, and the defendant asserts it had the right to do so despite the labor agreement because it had, some years earlier, adopted and put into uniform practice a policy of retiring all of its employees at the age of 65 years, regardless of their physical fitness to continue with the work they were doing at the time. Although this right or policy was not incorporated or reserved in the labor contract, the defendant relies upon its claimed right of retention of its compulsory retirement policy and, if not, it relies upon the Labor Union representative's knowledge of and acquiescence in the policy and that the plaintiff is charged with knowledge of the policy, or bound by the acquiescence of the Union representatives, because he was a member of the Local and also, as well, that he must have had knowledge of it from what was happening to other employees over the years.

During the trial the parties entered a stipulation to try the case without a jury.

One ground of defendant's motion for directed verdict or for judgment is that even if plaintiff did not know about the policy, he failed to institute grievance proceedings provided by the contract and therefore having failed to exhaust the contract's procedural and administrative remedies is not entitled to maintain this action.

There are many other matters recited in the answer as defenses, some relating to plaintiff's claim of loss of pension and other benefits by reason of what he terms his wrongful discharge. The plaintiff does not seem to have been one of those qualified for pension. The Company, as such, did not have a pension plan but under certain conditions an employee might become eligible for a small pension under a plan founded by Carnegie and the United States Steel Corporation, but in cases where Social Security exceeded the pension payments no pension was available.

Evidence was received to the effect that the Company at Lorain had entertained many grievance proceedings, initiated by or for other employees who had been retired at the age of 65 years. As it seems to me, such evidence must be limited to the issue of the adoption and enforcement of the compulsory retirement policy. It cannot, consistently with reason, be extended to establish the necessity or requirement of instituting the grievance proceedings provided by the contract since the right of compulsory retirement was not mentioned or reserved in the contract; and the defendant has asserted that it had retained that right despite the absence of anything regarding it in the labor agreement. To me it would seem not only inconsistent with the defendant's position, but completely futile to have instituted grievance proceedings in such circumstances. The retired employee had not the slightest chance of remedial consideration; there was no basis for relief. According to the defendant, the policy of retirement was inflexible and no one in the Company had the right to make exceptions; it was not an arbitral grievance; consequently, it would not be expected that the plaintiff should be required to do a vain thing as a prerequisite to a suit. I do not read the decision in Timken Roller Bearing Co. v. National Labor Relations Board, 6 Cir., 161 F.2d 949, as requiring the use of the grievance procedure in situations or disputes where, as here, the Company had taken the inflexible position that compulsory retirement was not the subject of arbitration.

The contention of defendant that the agreement of March 1, 1950 between the United Steelworkers of America and the defendant constitutes full and complete settlement and disposition of the claim asserted by plaintiff in this action is untenable.

While it may be conceded that the Union as collective agent might enter into an agreement settling for the future the subject of retirement and pensions, Elgin, Joliet & Eastern Ry. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, rehearing 1946, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928; Inland Steel Co. v. National Labor Relations Board, 7 Cir., 1948, 170 F.2d 247, 12 A.L.R.2d 240; Lewellyn v. Fleming, 10 Cir., 1946, 154 F.2d 211, it could not settle and dispose of plaintiff's accrued rights retroactively, unless authorized in some legally sufficient way to act in his behalf. Elgin, Joliet & Eastern Ry. Co. v. Burley, supra; Kordewick v. Brotherhood of Railroad Trainmen, 7 Cir., 1950, 181 F.2d 963.

The evidence does not disclose a legally sufficient agency. There is no evidence that plaintiff gave specific authorization to the Union to act in his behalf. Indeed, at the time the Union purported to settle his claim he was no longer an active member. It is fair to say that the Union to some extent was bartering away claims of former members in an attempt to secure present benefits for active members. Even though in so doing the Union was properly representing its membership, the conflict of interest dispels a true agency so far as the plaintiff is concerned. Edwards v. Capital Airlines, 1949, 84 U.S.App.D.C. 346, 176 F.2d 755.

Nor is the insertion of Article XVII in the constitution of the United Steelworkers of America on May 18, 1946, a sufficient authorization in this instance. It would be ignoring realities to hold that the plaintiff — who already had been notified of his retirement on May 17, 1946, and whose employment was finally terminated on May 31, 1946 — impliedly accepted Union authority created by an amendment to its constitution and not to be exercised until years later when he was no longer an active member. Substantial rights can not be disposed of by such technical niceties.

It does not seem to me that the decision of the Supreme Court in the Burley case, supra, is sufficient authority to sustain the Resolution of the Union Convention so as to wipe out the accrued rights of employees by subsequent action. It is fundamental that such action may not have retroactive effect to impair or destroy accrued or pre-existing rights. The fact that the National Union adopted such Resolution as the one of May, 1946, is strong support for the plaintiff's position that the Union had no such power or authority over the plaintiff's accrued rights under the 1945 contract. I cannot interpret the decision in the Burley case as suggesting or proposing retroactive impairment or curtailment of a Union member's pre-existing contract rights by subsequent constitutional Resolution depriving members of their accrued rights, nor can I find sound reason for finding that the 1946 proceedings of the National Union should be applied to rights long since arising and belonging to the plaintiff.

It is well understood that the Union constituted the bargaining agent of the Union members and as such negotiated the contract which became binding on the members, but I am not prepared to hold that the Union as agent may be permitted to barter away the Union member's rights acquired under the contract by tacitly acquiescing in a Company policy of which the Union member had neither notice nor knowledge.

Thus the disposition of the twenty-six or more grievances, based upon compulsory retirement, held in abeyance in what has been called "step four" of grievance procedure and later, on March 1, 1950, made the subject of a settlement agreement between the Company and the Union could not...