Appeal from the United States District Court for the Northern District of Indiana No. S 75-185 - Allen Sharp, Judge.
Before Pell and Wood, Circuit Judges, and Flaum, District Judge.*fn*
Defendant White Motor Corporation (the Company) discharged plaintiff Anthony Baldini from its employment on April 17, 1975, on the ground that he and another employee had stolen company property. Baldini, denying the charge, asked his union, defendant Local Union No. 1095, UAW, to file a grievance on his behalf. This was done on April 24.*fn1 Under the collective bargaining contract between the Company and the Local Union, a grievance over a discharge begins at the "third step" of the contractual grievance procedure. This involves a meeting between the Company and the Local Union and a written reply to the grievance by the Company. At the meeting, held the same day, the Company provided its answer and denied the grievance.
The collective bargaining agreement provides that if a grievance is not satisfactorily resolved after the third step, it will be arbitrated if the Local Union makes a written request therefor within 15 days of receiving the third step answer from the Company. Although officials of the Local Union told Baldini that the steps necessary to obtain arbitration had been taken, in fact they never were. Baldini did not learn of this failure until well after the 15 days had passed, at which time he says an official of the International Union told him nothing more could be done for him. He then filed this action,*fn2 charging the Company with wrongful discharge and the Local and International Unions (and various officials thereof) with a breach of their duty of fair representation. No attempt was made to utilize any of the internal appeal procedures provided in the UAW Constitution. The district court granted summary judgment*fn3 to all defendants on the ground of Baldini's failure to exhaust the internal appeal procedures.
We consider first the doctrine of exhaustion as it applies to the claim against the union defendants. In Newgent v. Modine Manufacturing Company, 495 F.2d 919 (7th Cir. 1974), this court considered a UAW member's claim that his union had failed properly to represent him in his discharge grievance, and affirmed a district court judgment against the member on the ground of his failure to exhaust internal union remedies. The 1966 UAW International Constitution that applied in Newgent, just as the 1974 Constitution that applies here, mandated exhaustion as a precondition to initiating a civil action against the union. The court enforced this provision of the membership contract, holding that
(w)here, as here, there is no question as to the adequacy and mandatory nature of the intra-union remedies it is well settled that An exhaustion of the remedies is an indispensable prerequisite to the institution of a civil action against a union.
Id. at 927 (emphasis supplied).
To avoid the plain import of Newgent, Baldini advances four arguments. First, he says the court in Newgent did in fact decide the merits of the claim of improper discharge. That is true enough, but we fail to see how resolution of the merits of the action Against the employer implies anything about the separate and distinct action Against the union for unfair representation, not for wrongful discharge. In fact, the court expressly declined to consider the merits of the unfair representation action against the union. Id. at 928 n.19.
Second, Baldini argues that Local Union officials misrepresented the status of arbitration as that of being pursued and that an International Union official later told him nothing more could be done for him. As the Local Union officials' misrepresentations could be, in conjunction with the fact of failure to press the grievance, the very subject of relief in the internal procedures, their utterance can hardly rise to an excuse for not utilizing the procedures. Nor does the alleged statement that nothing more could be done constitute an excuse. Similar misstatements were involved in Newgent, but the court rejected Newgent's estoppel argument. By joining the UAW, Newgent (and Baldini) became obligated to exhaust union remedies, and "necessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies." Id. at 928 (footnote omitted). The court pointed out that Newgent had not contended that the union had refused to provide him with a copy of the Constitution. Id. at 928 n.18. The same thing is true here, and, in addition, our record contains copies of articles published in Solidarity, the UAW magazine, clearly outlining appeal rights and procedures. The affidavit of a UAW official states that all members receive copies of Solidarity. While Baldini states that he never saw the articles, he does not deny that he received a subscription to Solidarity, and his statement that most (but not all) of the articles appeared before he joined the union surely does not aid him.
Baldini's third argument is that a letter of February 24, 1976, more than five months after this action was filed, from his attorney to counsel for the union, offering to take no affirmative action in the case while any applicable internal remedies were pursued, somehow justifies a result different from Newgent. The assertion is specious. Exhaustion is an "indispensable Prerequisite " to this action which Baldini has not met. To allow circumvention of this rule by such a late offer to exhaust, while counsel stands poised to reactivate a pending lawsuit, would make nonsense of the contractual obligation of members to give their unions a chance to redress grievances and would turn Newgent's commitment to enforcing such obligations into a mere form of words.
The final argument advanced is that the UAW internal remedies are in any event inadequate. If true, this assertion would justify nonexhaustion, but Baldini has not demonstrated the existence of a factual issue as to its truth. The decisions of Local Union officials on grievances may be appealed to the local membership, and then to the UAW International Executive Board. If satisfaction is not obtained, a member may then appeal to the UAW's independent Public Review Board, which is comprised of distinguished citizens neither employed by nor members of the UAW, and which has the final word on cases brought before it. Either the International Executive Board or the Public Review Board may award a member damages incurred as a result of union misconduct. These procedures have frequently been recognized as fair and adequate, See Newgent, supra at 927; Reid v. Auto Workers, Local 1093, 80 L.R.R.M. 2886, 2892 (D.Okla.1972), Aff'd, 579 F.2d 517 (10th Cir. 1973), Cert. denied, 414 U.S. 1076, 94 S. Ct. 592, 38 L. Ed. 2d 483; Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 913 (4th Cir. 1963), Cert. denied, 372 U.S. 976, 83 S. Ct. 1111, 10 L. Ed. 2d 142; Developments in the Law Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983, 1035 (1963), and, indeed, Baldini challenges the adequacy of the procedures only insofar as they could not apparently gain for him reinstatement, company seniority, a clean employment record, punitive damages and attorney's fees. But relief against the Union in a civil action could never produce reinstatement, company seniority, or a clean employment record. As to punitive damages and attorney's fees, or for that matter any other relief from the union that its procedures did not yield, if Baldini can make a proper showing therefor he can return to court to obtain it. The point of the exhaustion requirement is that a union should have a right to attempt to satisfy disgruntled members, and a court should know just what the union did or did not do with respect to the complaint before trying to decide if fair representation really was denied and what relief would be just in the circumstances.
Turning to the dismissal of the action against the Company, section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a), provides for suits to remedy violations of collective bargaining agreements. Such agreements typically provide, as does the agreement involved here, for procedures to settle the grievances of individual employees. Encouraging the full use of such procedures to resolve disputes is a vital part of the federal labor policy, and, accordingly, an employee who has not attempted to use the procedures may not sue his employer for wrongful discharge. Republic Steel Corporation v. Maddox, 379 U.S. 650, 652-53, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). On the other hand, at least where resort to the procedures is placed in the hands of the union, if the union fails fairly to represent the aggrieved employee, he is relieved of the requirement that the collective bargaining contract procedures be the means of settling the grievance and may sue the employer directly. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562, 567, 570-71, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Harrison v. Chrysler Corporation, 558 F.2d 1273, 1276-77 (7th Cir. 1977).
The Company defends the summary judgment entered in its behalf on two grounds. First, it asserts that Baldini's failure to exhaust his internal union remedies provides it with a defense. This court considered the availability of nonexhaustion as an employer's defense in the recent case of Harrison v. Chrysler Corporation, supra. Although Harrison was in the public domain prior to the district court's decision herein, the parties did not cite it to the court and the court apparently did not discover it on its own. In Harrison, this court disagreed with statements by several other circuits that nonexhaustion of internal union remedies is never a defense for an employer. Recognizing that employers could not invoke the union's interests in the enforcement of membership contracts (to which employers are not parties) and freedom from premature judicial interference with union affairs, the court nonetheless did perceive an important and legitimate employers' interest in exhaustion in certain limited cases. Where use of internal remedies could result in reversal of a union's decision not to pursue a grievance, and could thus get the bargained-for grievance procedures back on track, an employer's right to expect primary use of such procedures is quite directly implicated, and it may insist that union remedies be attempted for this purpose. Id. at 1278-79.
In Harrison, however, the court found the limited employer nonexhaustion defense inapplicable, because the union no longer had the power to revive the grievance procedure. Id. at 1279. The same situation exists here. The collective bargaining agreement between the Local Union and the Company provided that a third step grievance could be advanced to arbitration only by written request of the Union within 15 days. By the time Baldini knew enough to have begun the union appeal procedure, the 15 days had long passed, and the grievance had been finally "settled" by the Local Union's inaction. The Company in its summary judgment memorandum in the district court and in an affidavit of the plant personnel manager attached thereto, took exactly this position. Furthermore, when a Local Union official orally requested an extension of the 15-day time limit, the Company denied the ...