Willetts v. Ford Motor Co., 76-2464

• Decision Date: 30 August 1978
• Docket Number: No. 76-2464,76-2464
• Citation: 583 F.2d 852
• Parties: 99 L.R.R.M. (BNA) 2399, 84 Lab.Cas. P 10,800 Robert WILLETTS, Plaintiff-Appellant, v. FORD MOTOR COMPANY and United Auto Workers of America, Local 898, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 852

583 F.2d 852

99 L.R.R.M. (BNA) 2399, 84 Lab.Cas. P 10,800

Robert WILLETTS, Plaintiff-Appellant, v. FORD MOTOR COMPANY and United Auto Workers of America, Local 898, Defendants-Appellees.

No. 76-2464.

United States Court of Appeals Sixth Circuit.

Argued April 11, 1978.

Decided Aug. 30, 1978.

William D. Haynes, Haynes & Donnelly, Detroit, Mich., for plaintiff-appellant.

Walter E. Vashak, Jr. and Richard J. Molloy, Paul R. Caldwell, Ford Motor Co., Theodore C. Miloch, Dearborn, Mich., Duane F. Ice, Bruce A. Miller, Miller, Klimist, Cohen, Martens & Sugerman, Detroit, Mich., for defendants-appellees.

Before EDWARDS and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

Plaintiff-appellant brought this action against his former employer, defendant-appellee Ford Motor Company, for discharging him in violation of the collective bargaining agreement in force at his former place of employment, and against his union, defendant-appellee United Auto Workers (UAW), Local 898, for failure to represent him fairly with respect to his grievance concerning the discharge. After answers to the complaint were filed, appellee employer and appellee union filed motions for summary judgment. Affidavits were filed on both sides. The district court held an evidentiary hearing, and after that hearing, it granted appellees' motion for summary judgment and dismissed appellant's complaint. Appellant has perfected this appeal. We affirm.

In the district court, the parties presented two very different versions of the facts in this case. According to appellant, in the summer of 1974 he suffered a series of injuries that caused him to miss work. First it was a shoulder injury that incapacitated him for five weeks, then a foot injury caused him to miss two days of work, and finally a knee injury (supposedly a turtle bit him) forced him to miss one day's work. When he returned to work after these absences, he was terminated. Appellant alleges that he filed a grievance with his union, that nothing came of the action, and that he was told by appellee union for five months afterwards the matter was still pending when in fact it had been withdrawn by the union.

Appellee union (appellee employer agrees with the following statement of facts) states that in the summer of 1974 appellant was absent from work on one day in June and on two days in July. When appellant reported for work following his two-day absence in July, he went to his employer's Medical Department to get a medical clearance for his absence for those two days. He was refused a medical justification for his time off and was instead sent to his employer's Labor Relations Department, where he met one of his employer's Labor Relations representatives and his union's plant chairman, one Jake Smith. The employer's labor representative told appellant that he was going to be discharged for absenteeism. Appellant offered excuses for his most recent absence, and plant chairman Smith intervened and suggested that appellant be given the opportunity to substantiate his excuses. The labor representative agreed.

For the next month appellant was absent from work on an excused absence. When in August appellant did report for work, he was informed that there was going to be a disciplinary hearing regarding his absences in June and July of that summer. Appellee union agreed to represent appellant at the hearing, and two committeemen discussed appellant's case with him prior to the hearing and presented arguments in appellant's behalf at the hearing. Despite appellee union's effort, appellee employer decided to discharge appellant.

Appellee union then aided appellant in filing a grievance. A second stage hearing was held two days after the disciplinary hearing, and at the second stage hearing appellant was represented by plant chairman Smith and another union committeeman. At this hearing the employer's labor representative pointed out that appellant had been disciplined ten times for absenteeism since December, 1970, and stated that appellant was being properly discharged. The union representative presented arguments in appellant's behalf, but the employer's labor representative was not persuaded. After this hearing, appellee union withdrew appellant's grievance, having come to the conclusion that appellant's grievance lacked merit, and promptly notified him of the union's decision not to pursue further his case.

In November, 1975, appellant filed this lawsuit. Appellant did not, prior to bringing this action, seek to utilize available intra-union remedies, and he does not contend otherwise.

The district court, after considering the affidavits filed in the case and the testimony given at the evidentiary hearing, issued an opinion granting summary judgment to the appellees. The district court adopted the position, urged by appellees, that appellant was precluded by the collective bargaining agreement from suing the employer in the absence of a showing of unfair representation on the part of the union, See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1966), and that appellant was precluded from asserting a claim of unfair representation because (1) appellant had not shown that the union's actions with respect to appellant's grievance were arbitrary, discriminatory, or in bad faith and (2) appellant had failed to exhaust his intra-union remedies. The district court determined that appellant had not shown union arbitrariness, discrimination, or bad faith in the handling of his grievance because it credited the version of the facts presented in union plant chairman Jake Smith's affidavit and testimony given at the evidentiary hearing as the more accurate representation of what actually occurred and discredited appellant's version; the court found as a fact that appellant had been notified by the union that his grievance was being withdrawn for cause shortly after that decision was made and that appellant had sat on his rights. The district court determined that appellant had not exhausted his intra-union remedies since, as was undisputed, appellant had not sought to utilize the union appeal procedures, set out in the UAW's Constitution, that existed for members aggrieved by grievance and arbitration decisions of their local unions.

On appeal to this Court, appellant seeks reversal of the district court's judgment of dismissal. He contends that summary judgment could not have been granted because there were material issues of fact concerning whether appellee union had unfairly represented him by wrongfully failing to process his grievance and because he had exhausted his intra-union remedies.

We agree with appellant that the district court erred in granting summary judgment on the ground that appellant had not shown that the union had not fairly represented him with respect to his discharge from employment. For summary judgment to be rendered for appellees it was required that there be "no genuine issue as to any material fact" and that appellees be "entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. This standard was not satisfied in the present case.

Since appellees would be entitled to a judgment as a matter of law if the union had fairly represented appellant, the application of the standard for granting summary judgment in this case meant that there could be no dispute about whether appellee union's action not to press appellant's grievance past the second stage hearing was arbitrary, discriminatory, or in bad faith. The burden of showing that there was no issue of fact concerning appellee union's conduct being arbitrary, discriminatory, or in bad faith as to appellant was on the appellees since they were the parties seeking summary judgment. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fitzke v. Shappell 468 F.2d 1072, 1077 (6th Cir. 1972). Viewing the record in the light most favorable to appellant, See Fitzke v. Shappell, supra, 468 F.2d at 1077, there is no question but that appellees did not carry their burden and that there were genuine issues of fact as to whether appellee union's conduct was arbitrary, discriminatory, or in bad faith. At the very least, there was a disputed issue of fact concerning the circumstances of appellant's notification of the union's decision to drop appellant's grievance. If it were true, as appellant alleged and appellees denied, that the union did not for five months inform appellant of its decision not to press his grievance past the second stage hearing while appellant was calling to find out what was happening, then there would be evidence that would support a finding of union bad faith in failing to process appellant's claim. See Dill v. Greyhound Corp., 435 F.2d 231 (6th Cir. 1970), Cert. denied, 402 U.S. 952, 91 S.Ct. 1622, 29 L.Ed.2d 122 (1971).

The affidavits filed in this case conflicted on this point. Faced with this situation, the district court held an evidentiary hearing to use the district court's words "to establish the truth of the matter." The district court took testimony and afterwards issued its opinion in which the Court stated that it had credited and discredited testimony in finding that appellant had been promptly notified of the union's decision not to press his grievance and had not pursued his rights, a finding which would defeat appellant's assertion that appellee union's actions as to his grievance were arbitrary, discriminatory, or in bad faith....