United States District Court, Northern District of Illinois, E.D
July 27, 1983
KENNETH A. GILL, PLAINTIFF,
WESTINGHOUSE ELECTRIC CORP., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Kenneth Gill ("Gill"), a black man, sues Westinghouse Electric Corp.
("Westinghouse") and Local 1105, United Electrical Radio and Machine
Workers of America ("Union"). Gill's Amended Complaint (the "Complaint")
1. Westinghouse and Union imposed racially
discriminatory employee discipline on him, in
violation of 42 U.S.C. § 1981 ("Section 1981")
2. Westinghouse and Union violated their collective
bargaining agreement (the "Agreement") by (a) their
handling of Gill's resulting grievances and (b)
Westinghouse's subsequent layoff of Gill while
retaining less senior employees, for which violations
Gill claims a right of action under Labor-Management
Relations Act § 301, 29 U.S.C. § 185 ("Section
301") (Count II).
Union has now moved in the alternative (1) to be dismissed from both
Counts under Fed.R.Civ.P. ("Rule") 12(b)(6) or (2) for summary judgment
on both Counts under Rule 56.*fn1
Westinghouse has filed a parallel
motion and alternative motion as to Count II. For the reasons stated in
this memorandum opinion and order:
1. Union's motions (a) to be dismissed from Count I
and (b) for summary judgment on Count II are granted.
2. Westinghouse's summary judgment motion on Count
II is granted.
Complaint Count I ¶ 5 alleges:
1. Gill had an accident while employed as a
Westinghouse jeep driver.
2. He was disciplined for that accident by a
December 3 to 17, 1982 suspension.
3. He received no written notice from Westinghouse
concerning either his suspension or his
Count I ¶ 6 alleges white employees received lesser or no discipline
for similar workplace infractions.
Count I implicates Union only in Paragraph 4, which (1) merely
describes Union as the representative of Westinghouse's employees but (2)
alleges no facts
tying Union to the discriminatory discipline allegedly imposed on Gill.
Thus Count I simply does not allege any necessary facts to show a Section
1981 claim against Union, and that count therefore cannot withstand
Union's Rule 12(b)(6) motion.*fn2 See Cohen v. Illinois Institute of
Technology, 384 F. Supp. 202, 205 (N.D.Ill. 1974), aff'd, 524 F.2d 818,
827 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48
L.Ed.2d 187 (1976). It need hardly be added Gill's unsupported conclusory
allegations as to Union's violation of Section 1981 cannot salvage Count
I on a motion to dismiss. See Watters v. Harris, 656 F.2d 234, 240 (7th
Count II assails Union for both (1) the way it handled Gill's grievance
on his December 1982 suspension (¶ 3-5) and (2) its failure to
protect Gill's seniority rights in a January 1983 layoff (¶ 6). Union
is entitled to summary judgment as to both those Count II claims.
1. December 1982 Grievance
To establish a section 301 claim against Union as to its handling his
December 1982 grievance, Gill must show Union "deliberately and
unjustifiably" refused to represent Gill's interest in processing that
grievance — that its misconduct was in bad faith or otherwise
intentional, not just negligent. Dober v. Roadway Express, Inc.,
707 F.2d 292, 294 (7th Cir. 1983); Superozynski v. P.T.O. Services,
Inc., 706 F.2d 200, 202 (7th Cir. 1983). Here it is undisputed Union did
pursue Gill's grievance — and successfully, for it obtained his
reinstatement. See June 10, 1983 Affidavit of Westinghouse Human
Resources Assistant Gerald Keeley ("Keeley Aff.") 2-3; June 10, 1983
Affidavit of Westinghouse Inspector and Union Steward James Scott ("Scott
Aff.") 2-4; June 10, 1983 Affidavit of Union Local President Samuel
Minnefield ("Minnefield") ("Minnefield Aff.") 2-4; Gill's April 6, 1983
Affidavit ("Gill April Aff.") ¶ 2; February 22, 1983 Affidavit of
former Union Local President James Usher ("Usher") ("Usher Feb. Aff.,"
filed by Gill) ¶ 5.
Nevertheless Gill advances what he terms a "grievance" for back pay.
But on that score he says only (1) he "assumed" Union would press or
follow through on the matter and (2) he was later told by Union getting
back to work was more important. Complaint Count II ¶ 3-4; Gill April
Aff. ¶ 2; Gill's June 6, 1983 Affidavit ("Gill June Aff.") ¶ 13.
At most Gill thus contests Union's tactical judgment on his behalf or
perhaps its negligence in not pursuing his supposedly "independent"
grievance for back pay.*fn4 Such conduct simply would not constitute a
violation of Union's duty of fair representation. See Dober, 707 F.2d at
294; Superczynski, 706 F.2d at 203.
Thus there is no genuine issue of fact material to Union's liability to
Gill for handling his December 1982 grievance. Union is therefore
entitled to judgment on that Count II claim as a matter of law. See
Dober, 707 F.2d at 294-95.
2. January 1983 Layoff
As to Gill's layoff claim, he does not assert he attempted to exhaust
grievance or collective bargaining procedures under the
Agreement, a precondition to maintaining his Section 301 action against
Union. Macon v. Youngstown Sheet & Tube Co., 698 F.2d 858, 860 (7th Cir.
1983). True, Gill's does ambiguously allege (Count II ¶ 7) the
"futility" of further action (through Union?), apparently an attempt to
bring his action under one of the recognized exceptions to the exhaustion
requirement. See Macon, 698 F.2d at 860. But he submits no affidavit
stating facts that suggest the futility of his pursuing Union procedures
as to his layoff.*fn5
On Union's Rule 56 motion Gill is entitled "only [to] those inferences
that follow reasonably from the evidence," State Bank of St. Charles v.
Camic, 712 F.2d 1140 at 1144 (7th Cir. 1983). And here the only record
evidence shows Gill made no effort to pursue Union grievance procedures
as to his layoff. Scott Aff. at 4; Minnefield Aff. at 4.*fn6 Thus, there
being no genuine issue of material fact as to Gill's failure to exhaust
Union procedures regarding the January 1983 layoff, Union is also
entitled to summary judgment as a matter of law as to that Count II
Westinghouse properly rests (Mem. 6-9; R.Mem. 1-4) on Gill's failure
(1) to show Union breached its duty to represent him fairly as to his
December 1982 grievances and (2) to even allege, let alone show, he
exhausted Union grievance procedures as to his January 1983 layoff:
1. Because Union's breach of its duty to Gill is a
prerequisite to Gill's Section 301 action against
Westinghouse, see Dober, 707 F.2d at 293 and Macon,
698 F.2d at 862, the grant of summary judgment to
Union as to Gill's December 1982 grievance claim is
dispositive of Gill's action against Westinghouse on
that Count II claim. See Dober, 707 F.2d at 295-96.
2. Because exhaustion of Union procedures is a
prerequisite to a Section 301 suit against either
Union or Westinghouse, Macon, 698 F.2d at 860, the
grant of summary judgment to Union as to Gill's
January 1983 layoff claim is dispositive as to Gill's
action against Westinghouse on that Count II claim.
No cause of action has been stated against Union in Count I. There is
no genuine issue of material fact, and each defendant is entitled to a
judgment as a matter of law, as to Count II. Accordingly Union is (1)
dismissed as a defendant from Count I and granted summary judgment on
Count II. Westinghouse is granted summary judgment on Count II.