Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 69-S-112 ROBERT A. GRANT, Judge.
Castle, Senior Circuit Judge, Campbell, Senior District Judge,*fn* and Jameson, Senior District Judge.*fn**
JAMESON, Senior District Judge.
Plaintiff-appellant, Donald Newgent, brought this action against his employer, Modine Manufacturing Company (Modine), and his local union, United Auto Workers Local Union Number 530 (Union), alleging that he was dismissed from his employment improperly and without cause and "not as provided" in the collective bargaining agreement between the defendants, and that the Union did not properly and adequately defend and protect his rights under the agreement. Following answers and discovery, both defendants filed motions for summary judgment.
After a hearing the district court concluded that there was no genuine issue of any material fact and granted both motions. The court held that Modine had properly terminated Newgent and that thereafter he "failed to avail himself of the procedures that were open to him". With respect to the Union, the court held that since Newgent had been properly terminated there could be no liability on the ground that the Union did not fairly represent him, and in the alternative that there was "no genuine issue in dispute" that would indicate that the Union's conduct in representing Newgent, "even in the discussions of settlement, was arbitrary, discriminatory or in bad faith". We affirm.
From the pleadings, depositions, exhibits and affidavits presented to the district court on the motions for summary judgment, the facts may be summarized as follows:
Newgent failed to report for work at the end of his vacation on June 12, 1967.*fn1 On June 14 he reported at Modine's plant and secured from his foreman a personal leave of absence until June 19 because he was having difficulties with a tavern business he operated in addition to his duties at Modine. In his deposition Newgent testified that he reported to his foreman on June 14 because he was aware of a requirement in the collective bargaining agreement "that you had to report to somebody at the Company within three days after you had been absent or you would lose your job".
On June 19 Newgent reported for work but on June 20 again failed to appear. He telephoned Modine, informing the nurse on duty that he was having back trouble and was going to see a doctor and did not know when he would be able to return to work. He consulted his physician and was referred to another physician and advised not to return to work until X-rays had been taken and evaluated. X-rays were taken on June 29. Although not hospitalized or confined to bed, Newgent did not contact Modine or inform it of the reason for his extended absence.
Modine placed Newgent on sick leave status from June 20 through June 23. On June 26 his status was changed to absent without leave and on June 29 he was terminated for being absent for three consecutive working days without notifying Modine. A "Termination of Service" form was sent to Newgent by registered mail, and he received it on July 5.*fn2
On July 10 Newgent contacted Modine's plant superintendent, John Overmyer, to protest the termination. Overmyer informed Newgent that he could not change the termination and that Newgent should discuss the matter with the personnel supervisor, Mr. Haney, when he returned from vacation on July 17. Newgent met with Haney on July 18 and was advised that the termination would stand. Following the meeting with Haney, Newgent contacted the Union president, Robert Hluchan, and, with the assistance of James Graham, a vice president of the Union, a grievance protesting Newgent's termination was prepared and filed with Modine on August 1.*fn3
In his deposition, taken on December 2, 1969, Newgent stated that he first discussed the filing of this grievance with Union officials on July 18, the day he talked to Mr. Haney. However, in an affidavit dated July 28, 1972 and filed in opposition to the motions for summary judgment Newgent states that he first contacted Graham on July 10 and that on this date he and Graham prepared a handwritten grievance "on a yellow sheet of paper". Graham allegedly stated that the form would have to be redone to correct spelling and that he would file "right away" both the corrected and hand-written copies of the grievance. The affidavit also alleges that during the July 18 meeting Hluchan and Graham "stated that they were unable to find the union's copy of the original Grievance and they also stated that the company denied any knowledge about the original Grievance which had been previously prepared".*fn4 There is no evidence that this alleged grievance was ever presented to Modine.
Union officials met with Modine a number of times in August and September to discuss Newgent's grievance. Modine insisted that the grievance was untimely since it was not filed within five working days after Newgent learned of his termination. At one point during the negotiations Modine offered to reinstate Newgent without back pay, but Hluchan rejected this offer. A later offer of reinstatement with back pay was also rejected by Hluchan and Newgent, since it was conditioned on having the Union drop an unrelated grievance.
On September 29 Newgent received a release from his physician stating that he was "able to return to work". Newgent contacted Hluchan, who arranged another meeting with Haney to discuss reinstatement. Haney informed them that "the termination still stands".
The Union requested that Newgent's grievance be submitted to arbitration by the American Arbitration Association, but Modine resisted this action on the ground that the grievance was not timely filed. On March 6, 1968 the Association "determined that an issue as to arbitrability exists which must be determined by an arbitrator". However, after receiving a memorandum from Modine the Association on March 15 "revoked" the letter of March 6 and refused to compel arbitration on the ground that it lacked jurisdiction under the collective bargaining agreement, which required that arbitration by the Association must be requested by both the Union and Modine.
Hluchan advised Newgent that any further pursuit of the grievance would require a lawsuit to compel arbitration and that such action would have to be authorized by the Union membership. Newgent did not seek membership approval, nor did he attempt to exhaust intra-union appeals procedures available to contest the Union's handling of this grievance.
In his affidavit Newgent explained that union remedies were not pursued because he was "not aware of the details regarding intra-union appeals or appeals from union decisions regarding grievances". He also alleged that Hluchan advised him that "to bring the matter all the way to Detroit would require the posting of a bond in the amount of $50,000.00 and that the taking of any further intra-union steps would be senseless and fruitless".
Hluchan gave Newgent copies of the Union's file on his grievance and Newgent alleges that Hluchan advised him to retain an attorney and file suit against the Union and ...