Thomas v. Ford Motor Company

• Decision Date: 08 November 1973
• Docket Number: Civ. A. No. 39879,40129.
• Citation: 396 F. Supp. 52
• Parties: Boris THOMAS, Plaintiff, v. FORD MOTOR COMPANY, a Delaware Corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

396 F. Supp. 52

Boris THOMAS, Plaintiff, v. FORD MOTOR COMPANY, a Delaware Corporation, et al., Defendants.

Civ. A. Nos. 39879, 40129.

United States District Court, E. D. Michigan, S. D.

November 8, 1973.

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Theodore Weiswasser, Weiswasser & Barnard, Southfield, Mich., for plaintiff.

Joseph A. O'Reilly and James R. Jackson, Dearborn, Mich., for Ford Motor Co.

Jordan Rossen, Detroit, Mich., for UAW.

MEMORANDUM OPINION

FEIKENS, District Judge.

Plaintiff sues Ford Motor Company, the International Union — UAW, and Local 600 — UAW alleging racial discrimination, unfair representation, and violation of the collective bargaining agreement. Defendants move to dismiss, or in the alternative to strike certain demands in the complaint. Inasmuch as it has been necessary to go beyond the pleadings, the motion has been treated as one for summary judgment pursuant to Rule 56.¹

Background

The relevant events are essentially undisputed. In the spring of 1971 a blast furnace in the slab mill of the rolling mill in which plaintiff worked as an electrician was closed down for repairs. In preparation for the shutdown, officials of Ford and Local 600 met in late 1970 to make arrangements for layoffs and bumping rights. The resulting agreement, dated December 21, 1970, and two supplementary letters of understanding, dated February 16 and March 4, 1971, provided that approximately sixteen low seniority electricians in the rolling mill were to be temporarily laid off. Those with higher seniority were to exercise their seniority within the rolling mill so as to remain on the job during the shutdown. Plaintiff was one of this latter group and was required to accept a lower incentive job assignment at the same time that the low seniority electricians were laid off. Once full operations were resumed, plaintiff found himself with insufficient seniority to bid back to his former high incentive position. The low seniority electricians, however, because they had been on layoff status, were permitted to resume work in their former high incentive jobs.

As was noted by the International Union's Public Review Board, in the course of considering plaintiff's appeal from the union's failure to prosecute his grievance, plaintiff "has displayed unusual energy and resourcefulness in attempting to right the wrong he believes he has suffered. He has written to Ralph Nader, filed charges with the NLRB,² appealed from the dismissal of those charges, complained to the Department of Labor and to the EEOC."³ Except for having obtained a "right to sue" letter from the EEOC, he has been wholly unsuccessful in these efforts.

Current Litigation

Having failed to obtain relief in any other forum, plaintiff instituted an action in this court (docket no. 39879) charging defendants with violating the terms of the Ford-UAW collective bargaining agreement. He later filed a second suit (no. 40129) alleging racial discrimination and breach of the duty of fair representation. All charges related to the events surrounding the furnace shutdown. The two actions were subsequently consolidated and have, for all practical purposes, been treated as a single case. The defendants' motions and this opinion are directed at all three of plaintiff's claims for relief. Singular references, particularly those made to "the complaint," should be read accordingly. Likewise, although the International Union and Local 600 were individually named as defendants, their interests and the bases for their liability are virtually identical. They have, therefore, been considered as essentially a single entity, referred to simply as "the union".

Plaintiff advances three distinct theories of liability. He sues the company for breach of contract, claiming that the procedure whereby he was forced to continue working rather than being allowed to take a layoff was a violation of the collective bargaining agreement (Count I). He alleges a concomitant breach by the union of its duty of fair representation because of its participation in that arrangement, and (perhaps) because of its failure to prosecute plaintiff's grievance (Count II). Finally, plaintiff charges that the defendants conspired to discriminate against plaintiff and others in the company's hiring, promotional, and seniority systems in violation of Title VII of the 1964 Civil Rights Act,⁴ 42 U.S.C. §§ 1981 and 1983, and the fourteenth amendment (Count III).

Counts I and II

Although never specifically cited by plaintiff, it appears that the charges of breach of contract and unfair representation are brought under 29 U.S.C. § 185 (Section 301 of the Labor Management Relations Act of 1947). Defendants question plaintiff's right to sue under Section 301 on a variety of grounds.

1. Plaintiff's Right to Sue Under Section 301. a. Effect of NLRB Jurisdiction — It is well established that actions under Section 301 are maintainable even where the subject matter would also be within the Board's jurisdiction over unfair labor practices. Smith v. Evening News Ass'n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Vaca v. Sipes, 386 U.S. 171, 176-83, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It follows that the exhaustion of remedies available from the NLRB is not a prerequisite to maintenance of this action. See West Coast Tel. Co. v. Local 77, IBEW, 431 F.2d 1219, 1222 (9th Cir. 1970). Conversely, neither does an unsuccessful exhaustion of those remedies necessarily bar relief under Section 301. The legal rights and liabilities at issue in a Section 301 suit are distinct from those involved in proceedings before the NLRB. Each represents a different cause of action, and a decision in one type of suit cannot constitute res judicata as to the other. An unfair labor practice may or may not be a contract or fair representation violation, and viceversa. It is true that the doctrine of collateral estoppel might operate to foreclose further consideration of certain issues of fact (or of fact and law) once decided, regardless of the type of action involved. The conclusion of a regional director and the general counsel of the NLRB that a complaint should not issue is not, however, an adjudication of the sort which can give rise to such an estoppel. Ruzicka v. General Motors Corp., 336 F.Supp. 824, 827 (E.D.Mich. 1972).

b. Individual Employee's Right to Sue—Individual employees may bring suit to vindicate rights conferred upon them by the collective bargaining agreement, Smith v. Evening News Ass'n, supra, 371 U.S. at 198-200, 83 S.Ct. 267, and for violations of the union's statutory duty of fair representation. Vaca v. Sipes, supra; Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).

c. Exhaustion of Contractual Remedies—As a general rule, "individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (emphasis in original, footnote omitted). Such efforts are not required, however, if the parties did not intend the grievance and arbitration procedure to be the exclusive remedy under the contract,⁵ or if the pursuit of such a remedy would be a futile act.⁶

Plaintiff's allegation in the complaint that he has exhausted his contractual remedies stands uncontradicted on this record. Plaintiff filed his own grievance after he was unable to persuade the union to do so on his behalf. That grievance was denied at the first stage, and the union refused to carry it any further. Plaintiff pursued his intra-union remedies in an attempt to reverse this decision, but was unsuccessful.

Article VII, Section 1 of the Ford-UAW collective bargaining agreement provides in part as follows:

"Except with respect to the right to present an individual grievance as expressly set forth in Section 2 of this Article, the Union shall, in the redress of alleged violations by the Company of this Agreement or any local or other agreement supplementary hereto, be the exclusive representative of the interests of each employe or group of employes covered by this Agreement, and only the Union shall have the right to assert and press against the Company any claim, proceeding or action asserting a violation of this Agreement."

The right of an individual to present his own grievance provided for in Section 2 is limited to its initial submission to the foreman (first stage). After disallowance by the foreman, it may be prosecuted further only with union cooperation. That cooperation was denied plaintiff by his committeeman, the Grievance Committee of the Local 600 General Council, the Local Executive Board, the General Council, the International Executive Board Appeals Committee, and the International Union's Public Review Board. Plaintiff's efforts to bring his case before the UAW Convention Appeals Committee were unsuccessful.

"Another situation when the employee may seek judicial enforcement of his contractual rights arises if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union's wrongful refusal to process the grievance."

Vaca v. Sipes, 386 U.S. 171, 185, 87 S. Ct. 903, 914, 17 L.Ed.2d 842 (1967) (emphasis in original). Plaintiff meets this standard and is entitled to sue under Section 301.⁷

This conclusion is confirmed by another paragraph of Article VII, Section 1:

"Any grievance that either (a) is not processed or (b) is disposed of in accordance with this Grievance Procedure shall be considered settled, and such settlement shall be final and binding upon the Company, the employe or employes involved, the Union and its members."

2. Substance of Plaintiff's Claims Under Section 301. ...