including breach of the Union's duty of fair representation.
This matter is before this Court on Defendant's Motion to
Dismiss Plaintiffs' Amended Complaint. Defendant's motion is
First, as to the question of whether or not the "Disputes"
clause*fn1 was intended by the parties to be the exclusive
remedy for redress of employee grievances, this Court holds
that it was so intended. As the Supreme Court has often noted,
any doubts should be resolved in favor of channeling grievances
through the grievance-arbitration procedure. See, e.g., United
Steelworkers of America v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Drake
Bakeries v. Local 50, American Bakery and Confectionery Workers
International, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474
(1962). In order for a grievance procedure not to be exclusive,
there must be an express agreement between the parties to that
effect, such that it can be said with positive assurance that
the grievance procedure was not meant to be exclusive. Republic
Steel Corp. v. Maddox, 379 U.S. 650, 657-658, 85 S.Ct. 614, 13
L.Ed.2d 580 (1965); Belk v. Allied Aviation Service Co.,
315 F.2d 513 (2d Cir.) cert. denied, 375 U.S. 847, 84 S.Ct. 102, 11
L.Ed.2d 74 (1963). This "Disputes" clause contains no express
exclusions and so this Court cannot say with the required
"positive assurance" that it was not meant to be exclusive. On
the contrary, not only have the parties agreed on a no-strike
clause, which manifests their intent to settle grievances
through the "Disputes" clause, Local 174 Teamsters, etc. v.
Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593
(1962), but Belk v. Allied Aviation Service Co., supra, a case
approvingly cited by the Supreme Court, is directly on point
and supports this result. Finally, this Court does not find
persuasive a ruling by an NLRB Trial Examiner seemingly to the
contrary, because not only was this issue not squarely dealt
with by this Trial Examiner, but in any event, the construction
of a contract is not within the special expertise of the Board
and such interpretations are not binding on this Court.
Celanese Corp. v. NLRB, 291 F.2d 224, 226 (7th Cir.) cert.
denied, 368 U.S. 925, 82 S.Ct. 360, 7 L.Ed.2d 189 (1961); NLRB
v. J. W. Mortell Co., 440 F.2d 455 (7th Cir. 1971); NLRB v.
Hobart Brothers Co., 372 F.2d 203, 206 (6th Cir. 1967).
Second, this suit is clearly barred by Plaintiffs' failure to
timely and properly file grievances with the Union in
accordance with the Union's By-Laws. Since it is clear that an
employee under a grievance-arbitration procedure, such as the
one here, must "look to his union initially for the vindication
of his rights," Belk v. Allied
Aviation Service Co., 315 F.2d at 516, these employees were
required to do so in accord with the Union's By-Laws. See,
e.g., Steen v. Local Union No. 163, UAW, 373 F.2d 519 (6th Cir.
1967); Broniman v. Great Atlantic & Pacific Tea Co.,
353 F.2d 559 (6th Cir. 1965), cert. denied, 384 U.S. 907, 86 S.Ct. 1343,
16 L.Ed.2d 360 (1966). A Union's By-Laws, after all, are a
contract between the Union and its members, International
Ass'n. of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct.
923, 2 L.Ed.2d 1018 (1958), and as the Supreme Court has noted,
"The courts' role is but to enforce the contract." NLRB v.
Allis-Chalmers Manuf. Co., 388 U.S. 175, 182, 87 S.Ct. 2001,
2008, 18 L.Ed.2d 1123 (1967). Moreover, since under the Union
By-Laws nothing prevented these Plaintiffs from properly filing
a timely written grievance,*fn2 their claim of futility of
resort to the grievance procedure is baseless. Vaca v. Sipes,
386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Slagley v.
Illinois Central Railroad Co., 397 F.2d 546, 551-552 (7th Cir.
1968). Similarly inadequate here is Plaintiffs' failure to
allege exhaustion of intra-Union remedies. See, e.g., Bsharah
v. Eltra Corp., 394 F.2d 502, 503 (6th Cir. 1968).
Third, Plaintiffs' allegations of breach of the Union's duty
of fair representation are similarly without foundation.
Initially, it should be noted that a Union does not breach its
duty of fair representation by failing to process untimely and
improperly filed grievances. Steen v. Local Union No. 126, UAW,
supra. Thus, Plaintiffs' allegations of breach of the Union's
duty of fair representation are, on their face, unsupportable.
Irrespective of this, Plaintiffs' conclusory allegations fall
far wide of the mark of a sufficient claim of breach of the
Union's duty of fair representation. While this Court
appreciates the liberal construction to be applied to such
pleadings, Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th
Cir.), cert. denied, International Harvester Co. v. Waters,
400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), these
pleadings, based entirely on conclusory allegations, are
plainly insufficient. Slagley v. Illinois Central Railroad Co.,
supra; Smith v. CPC International, 72 LRRM 2846, 2847 (N.D.Ill.
1969); Ferrara v. Pacific Intermountain Express Co.,
301 F. Supp. 1240, 1244 (N.D.Ill. 1969). Plaintiffs' allegations of
an Employer-Union conspiracy are similarly conclusory and
insufficient. Lusk v. Eastern Products Corp., 427 F.2d 705 (4th
Cir. 1970); Brown v. Truck Drivers & Helpers Union No. 355,
292 F. Supp. 125, 129 (D. Md. 1968), affirmed, 416 F.2d 1333 (4th
Fourth, Plaintiffs' allegations that the "Disputes" clause
requires that every grievance be processed by the Union is
belied not only by the Union's By-Laws, clearly vesting the
Union with power to screen grievances, but also by the Supreme
Court's holding in Vaca v. Sipes, supra, clearly holding that
the Union has both the power and responsibility to screen
grievances. See also, Bazarte v. United Transportation Union,
429 F.2d 868 (3d Cir. 1970). As for Plaintiffs' claim that they
presented their grievances to Defendant, this is entirely
irrelevant to the issue of the adequacy of Plaintiffs' Amended
Complaint. Black-Clawson Co., Inc. v. IAM, 313 F.2d 179 (2d
Having failed to properly and timely exhaust the grievance
procedure, and state facts sufficient to allege a claim of
breach of the Union's duty of fair representation,
or any other Union misconduct, Plaintiffs have failed to state
a cause of action. Defendant's Motion to Dismiss the Amended
Complaint is granted with prejudice.