Winter v. Local Union No. 639, Affiliated with Intern. Broth. of Teamsters

Decision Date14 February 1978
Docket Number75-1949,Nos. 75-1948,s. 75-1948
Citation569 F.2d 146,186 U.S. App. D.C. 315
Parties97 L.R.R.M. (BNA) 2372, 186 U.S.App.D.C. 315, 83 Lab.Cas. P 10,302 Edward A. WINTER, Appellant, v. LOCAL UNION NO. 639, AFFILIATED WITH the INTERNATIONAL BROTHERHOOD OF TEAMSTERS and Maloney Concrete Company (two Cases).
CourtU.S. Court of Appeals — District of Columbia Circuit

John V. Long, Washington, D. C., for appellant.

Thomas J. Hart, Washington, D. C., with whom S. G. Lippman, Washington, D. C., was on the brief, for appellee Local 639 IBT.

Kevin W. Carmody, Washington, D. C., with whom Charles J. Steele, Washington, D. C., was on the brief, for appellee, Maloney Concrete Company.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge MacKINNON.

WILKEY, Circuit Judge:

This case involves a suit by plaintiff Winter against his employer, Maloney Concrete Co., for breach of contract, and against his union, Teamsters Local 639, for breach of its duty of fair representation. The facts are simple and undisputed. In 1971, Winter filed a grievance asserting that seniority should be awarded on a company-wide, rather than on a plant-wide, basis. Winter's assertion contradicted long-standing industry practice under the current and preceding collective bargaining contracts. 1 After several meetings with management (one of which Winter attended) the union decided not to process the grievance further. Winter neither protested nor appealed. Three years later, Winter filed a similar grievance. The union arranged a meeting with management, which Winter failed to attend. Winter did not notify the union to explain his absence. 2 In light of Winter's failure to appear, and in light of the fact that Winter's 1974 grievance was largely a restatement of his 1971 grievance, which had been disposed of on the merits, the union declined to process the 1974 grievance further.

On 3 April 1974 Winter brought suit under § 301 of the Labor-Management Relations Act. 3 He alleged that Maloney had breached the collective bargaining contract by refusing to award him company-wide seniority, and that Local 639 had breached its duty of fair representation by refusing to process his grievance out of political hostility towards him. The district court granted summary judgment both to the union and to the employer, on the ground that Winter had failed to exhaust his internal union remedies. 4 We affirm both grants of summary judgment, although our reasoning departs somewhat from that of the district court.

A. Winter's Suit Against the Union

The Landrum-Griffin Act specifically permits unions to require their members to exhaust internal union remedies before suing the union. 5 Although this language is discretionary, the circuit courts have unanimously upheld the exhaustion requirement and commended its utility. 6 In this case Exhaustion of intra-union remedies could be futile for two reasons. First, the union constitution might provide no adequate procedural route to the relief requested. In this case, the plaintiff seeks both money damages and an injunction directing Local 639 to process his grievances nondiscriminatorily in the future. 10 Winter probably could not have obtained money damages through union disciplinary channels. The union constitution provides, however, that decisions and penalties imposed in disciplinary proceedings "may consist of . . . commands to do or perform, or refrain from doing or performing, specified acts." 11 Winter could thus have obtained some of what he seeks, viz., an injunction, by a favorable outcome in the union proceedings. 12 Since the courts generally have insisted on a "clear and positive showing of futility" before excusing a failure to exhaust, 13 we conclude that Winter cannot be excused on the ground that the absence of available procedures would have made exhaustion futile.

                the union constitution and by-laws offer several remedies and expressly require that they be exhausted.  7  The constitution provides that an aggrieved member may file charges with the local Executive Board; if he loses there, he may appeal to the General Executive Board, which may try the case de novo and must in any event render decision within 15 days.  8  The constitution also provides for direct appeal to the International president.  9  Winter concededly failed to avail himself of these remedies.  He seeks to excuse his neglect by arguing that exhaustion of union remedies would have been futile
                

Exhaustion might be futile, secondly, because union officials are so hostile to a worker that he could not hope to get a fair hearing, regardless of the procedures available. The cases that have excused failure to exhaust on this ground, however, including the cases plaintiff cites, 14 have involved quite extreme facts. 15 Evidently, in order to prevail on this ground Winter must make a specific and convincing showing of union animus.

This showing can be made in two ways. First, it might be inferred from the circumstances surrounding the grievance process. In this case, however, the facts create no inference of union hostility, arbitrariness, or bad faith. Plaintiff was proffering, for the second time, what seems to have been a frivolous interpretation of the contract, and inexcusably failed to attend a grievance meeting the union had arranged. Given Second, a showing of hostility can be made by citing concrete evidence of personal animus. Winter does not do so. He presents some evidence that relevant union officials knew of his political activities in opposition to them. 16 He then makes conclusory allegations that the union was hostile to him on this account. 17 No evidence of actual hostility is shown. In fact, plaintiff's claim seems ultimately to be that he is excused from exhausting union remedies by the mere fact that he has made sworn allegations that the union's conduct was "politically motivated, in bad faith, and discriminatory." 18 This argument is without merit. In any suit alleging unfair representation, the union member will make allegations (sworn or unsworn) that the union's conduct was politically motivated, in bad faith, and discriminatory. That, indeed, is the gravamen of his case in chief. If such allegations suffice to justify failure to exhaust union remedies, the exhaustion requirement is a nullity.

this, the union's election not to process his grievance further gives rise to no suggestion of hostility.

Such allegations, at any rate, do not satisfy Fed.R.Civ.P. 56(e). In order to survive a motion for summary judgment under that rule, a party "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Plaintiff here has set forth no specific facts showing that there is a genuine issue regarding union hostility towards him, 19 and hence regarding the futility of exhausting available union remedies. For this reason, the district judge properly awarded summary judgment in favor of Local 639.

B. Winter's Suit Against the Employer

The district court held that the defense of failure to exhaust intra-union remedies was available, not only to the union, but also to the employer. We disagree, at least on the facts of this case. The few courts that have considered this question have held, almost unanimously, that the defense of failure to exhaust union remedies is not available to the employer. 20 The reason is that the union constitution, which provides for the internal remedies, is a "contract" only between the union and its members, and the employer cannot avail himself of the union's contractual defense. 21 No court of appeals has held that the defense is available to the employer; one circuit has said in dictum that it is not. 22 The only court of appeals to suggest otherwise was the Seventh Circuit in Orphan v. Furnco Construction Corp., 23 which implied that the employer might raise the exhaustion defense if he could show a "formal appeal or other procedure provided by the Union constitution or by-laws which so certainly holds out the prospect of . . . relief that the plaintiffs could justifiably be expected This conclusion, however, does not end the matter. In the district court, the employer urged as its first ground for summary judgment that "(t)here was no breach of the collective bargaining contract by Maloney Concrete Company." 27 The employer repeats this argument here. 28 The trial court did not reach this question. However, this Court has held that "(a)n appellate court has discretion to uphold a summary judgment under a legal theory different from that applied by the trial court, and rest the affirmance 'on any ground that finds support in the record' . . . ." 29 The record in this case is replete with evidence that Maloney did not breach the collective bargaining contract by refusing to award Winter company-wide seniority. 30

                to have recourse to it before filing suit."  24  In Orphan, however, the constitution provided for no formal appeals procedure, but merely for "criminal-type prosecutions against Union members and officers charged with specified offenses."  25  The court held that the prospect of relief held out by such procedures was sufficiently uncertain to make the exhaustion defense unavailable to the employer.  The procedures at issue here, significantly, are quite similar to those at issue in Orphan : the Teamsters' constitution likewise provides no procedures for appealing adverse grievance decisions, but only trial-type procedures for prosecuting offending union members.  Even under the Orphan dictum, therefore, there is no circuit court authority for making the defense of failure to exhaust union remedies available to the employer on the facts of this case.  26
                Winter has presented no evidence to contradict Maloney's affidavits.  For this reason, there
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