Steele v. BREWERY AND SOFT DRINK WKRS. LOCAL 1162

• Citation: 432 F. Supp. 369
• Decision Date: 18 April 1977
• Docket Number: Civ. No. F 76-142.
• Parties: Robert STEELE et al., Plaintiffs, v. BREWERY AND SOFT DRINK WORKERS LOCAL 1162, and Falstaff Brewing Corporation, Defendants.
• Court: U.S. District Court — Northern District of Indiana

432 F. Supp. 369

Robert STEELE et al., Plaintiffs, v. BREWERY AND SOFT DRINK WORKERS LOCAL 1162, and Falstaff Brewing Corporation, Defendants.

Civ. No. F 76-142.

United States District Court, N. D. Indiana, Fort Wayne Division.

April 18, 1977.

COPYRIGHT MATERIAL OMITTED

Grant F. Shipley, Fort Wayne, Ind., for plaintiffs.

David B. Keller, Fort Wayne, Ind., Barry A. Murphy, San Francisco, Cal., Edward J. Fillenwarth, Jr., Chris C. Anderson, Indianapolis, Ind., Thomas S. Locke, Fort Wayne, Ind., for defendants.

MEMORANDUM OF DECISION AND ORDER

ESCHBACH, District Judge.

This cause is before the court on the defendant union's motion to strike and motions to dismiss or, in the alternative, for summary judgment. For the reasons given below, the defendant's motion to dismiss will be granted in part and denied in part; the defendant's motion for summary judgment will be denied. The plaintiffs will be ordered to file a more definite statement of portions of their complaint within twenty days of the entry of this order. Count II of the complaint will be dismissed for failure to state a claim upon which relief can be granted.

This is an action for damages for an alleged breach of the union's duty of fair representation and breach of its contract with plaintiffs, as well as for damages arising from the breach of a collective bargaining agreement. Plaintiffs have demanded jury trial on these issues. The defendant union has moved to strike plaintiff's jury demand. In this motion, the defendant union does not appear to question plaintiffs' right to a jury trial on the contract issues. The question here is whether plaintiffs are entitled to a right to jury trial on the fair representation claims.

The defendant relies primarily on Harrison v. Chrysler Corp., 60 F.R.D. 9 (S.D.Ind. 1973), and a recent reaffirmation of Harrison in Davidson v. Internat'l Brotherhood of Teamsters, Civil No. IP 76-141-C (S.D. Ind., February 9, 1977). These decisions hold that a claim for breach of a union's duty of fair representation is equitable in nature and hence does not give rise to a right to jury trial.

This issue has given rise to a sharp division of authority. Reported decisions consistent with the result in Harrison are Brady v. Trans World Airlines, Inc., 196 F.Supp. 504 (D.Del.1961), aff'd, 401 F.2d 87 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969); and Nedd v. Thomas, 316 F.Supp. 74 (M.D.Pa.1970). Contrary to Harrison are Minnis v. International Union, UAW, 531 F.2d 850 (8th Cir. 1975); Rowan v. Howard Sober, Inc., 384 F.Supp. 1121 (E.D.Mich.1974); and Lucas v. Philco-Ford Corp., 380 F.Supp. 139 (E.D.Pa. 1974). Particularly since Harrison was decided without benefit of the subsequent decisions in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), and Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), this question deserves close examination.

The duty of fair representation is a judicially developed doctrine based upon a construction of various federal labor statutes. See Rowan, supra at 1124.

As the United States Court of Appeals for the Seventh Circuit observed in Rogers v. Loether, 467 F.2d 1110, 1116 n.23 (7th Cir.), aff'd sub nom., Curtis v. Loether, supra, the origin of the duty sought to be enforced, whether in statute, contract, or the common law, does not control the seventh amendment's application. The test is not, as Harrison and Brady saw it, whether the specific claim was itself "known" to the common law. Rather, it must be asked whether closely analogous rights and remedies were recognized by the common law. See, e. g., Pernell, supra, 416 U.S. at 369-83, 94 S.Ct. 1723. Although not every claim for monetary relief is necessarily a claim for "legal" relief, that the relief sought is the traditional form of relief offered at law is apparently a highly persuasive indication that the Seventh Amendment attaches. See Curtis, supra, 415 U.S. at 195-96, 94 S.Ct. 1005. The fact that equitable relief may also be sought based upon the same claim is of no apparent consequence. See id. at 196 n.11, 94 S.Ct. 1005; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

The court in Curtis thought it significant that the action under consideration therein—a housing discrimination claim— essentially sounded in tort. 415 U.S. at 195, 94 S.Ct. 1005. At least one court has observed that an action for breach of the duty of fair representation is, like a tort or a contract action, one for redress of a violation of a personal right. See Rowan v. Howard Sober, Inc., 384 F.Supp. 1121 (E.D. Mich.1974). Insofar as analogy is a guide, the instant action is sufficiently comparable to a traditional legal action to mandate a jury determination. Nor, considering the practical abilities and limitations of jurors, are the issues in this sort of action so extraordinarily complex as to preclude a jury determination. Cases far more complex than this have been and, on demand, must be tried to a jury in the federal courts.

The court concludes that the better view is that the duty of fair representation gives rise to a right to jury trial. Partly because the right itself is so precious, every reasonable presumption should be indulged in its favor. Hence, the defendant union's motion to strike will be denied.

The union also moves to dismiss the action or, in the alternative, for summary judgment. The union's motion first addresses paragraphs 5 through 45 of the complaint. The union's contention is that the claims made therein are barred for failure of the plaintiffs to exhaust internal grievance procedures. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965).

Paragraphs 5-45 of the complaint allege a failure by defendant Falstaff and the union to take action on the plaintiffs' requests for medical transfer, as provided by the collective bargaining agreement; it is also alleged that the union failed to bargain with the company on behalf of the plaintiffs toward retention of the delivery department. The plaintiffs point out that the latter allegation involves a "pure" question of fair representation, as opposed to breach of a collective bargaining agreement. There being no labor agreement covering the subject matter, there is nothing to submit to the grievance procedure. Of course, employees in the position of the plaintiffs, who seek to enforce the union's duty to represent them fairly, are required to exhaust whatever internal union remedies exist. See Fingar v. Seaboard Air Line R. R. Co., 277 F.2d 698 (5th Cir. 1960). In this case, however, the plaintiffs allege that no such procedure exists. The union does not dispute this. Hence, the claim of a failure to bargain is unaffected by the "exhaustion" principle.

The remaining allegations of paragraphs 5-45 are based upon a breach of contract. Allegedly, the bargaining agreement herein provides for medical transfer of an employee without loss of seniority. The plaintiffs recognize the ordinary rule that where such a duty is imposed upon an employer, and made enforceable by the union, the employee must exhaust the available grievance procedures. See Maddox, supra. The plaintiffs concede that they filed no grievance prior to filing the instant complaint, although they have done so since the union filed its motion to dismiss.

However, the plaintiffs argue forcefully that the Maddox rule is inapplicable here, given the futility of the grievance procedure under these particular circumstances. The collective bargaining agreement provides, in sections 5(c) and 6(a) of Article II, for medical transfer. However, this right is expressly conditioned, by section 6(c), upon "union approval before a transfer can be initiated." The plaintiffs interpret this provision to mean that before the company can act on a medical transfer request there must be union approval. The plaintiffs allege that they notified the company of their request, and that the company in turn notified the union. Allegedly, the union took no action. Thus, the plaintiffs contend that no action on the requests could be expected from the company; and that therefore there was nothing about which a grievance could be made. In these circumstances, the plaintiffs argue that any grievance would have been futile and that therefore the exhaustion of grievance procedures should not be required under the rule in Desrosiers v. American Cyanamid Co., 299 F.Supp. 162 (D.Conn.1969).

The court observes that the plaintiffs' interpretation of the procedure to be followed under section 6(c) is not inescapable. That section might well mean that an employee must have prior union approval before he submits ("initiates") a medical transfer. Under this interpretation, the proper procedure might well be for an employee to secure union approval and submit this to the company with his request. If this is the proper procedure, it may well be that the plaintiffs' claim is barred for failure to preserve the right to a transfer.

Since the proper interpretation of the contract here may well turn on a showing of industry custom, this court is unable to resolve the question at this posture of the litigation. Assuming for the moment that the plaintiffs' interpretation of section 6(c) is the correct one, it must be asked whether exhaustion of grievance procedures should be required in the circumstances alleged.

The court notes at the outset that there is some irony in the plaintiffs' position. The plaintiffs have informed the court that, subsequent to the filing of this motion, they filed grievances on this matter against the company, that the company denied the transfer requests, and that the union has taken the issue to arbitration. Hence, their argument that a grievance would have been futile seems misplaced. It may be, however, that in processing the recent grievance, the company departed from the procedures called for by...