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United States District Court, Northern District of Illinois, E.D

July 27, 1983


The opinion of the court was delivered by: Shadur, District Judge.


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") alleges:

    1. Westinghouse and Union imposed racially
  discriminatory employee discipline on him, in
  violation of 42 U.S.C. § 1981 ("Section 1981")
  (Count I).

    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.

Union's Motions

Count I

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 Cir. 1980).*fn3

Count II

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 claim.*fn7

Westinghouse Motions

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.

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