Wood and Eschbach, Circuit Judges, and Kellam, Senior District Judge.*fn*
This is a class action by employees against an employer for breach of a collective bargaining agreement brought under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. We are asked to decide whether employees who have exhausted the remedies provided under a contractual grievance procedure and received a final adverse determination may have the merits of their grievance reviewed by a court in a breach of contract action against their employer despite the fact that they do not allege that their union breached its duty of fair representation. We hold that they may not and so affirm the district court's dismissal of the employees' claims under § 301.
In the mid-seventies, Westinghouse commissioned certain area wage surveys to determine accurate and equitable pay levels for comparable job skills among Westinghouse's employees. The wage surveys had been agreed to by Westinghouse and the International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 917 ("Union") as part of a 1976 Strike Settlement Agreement. Chester Huffman is a member of the Union and a Westinghouse employee. Huffman and other male employees in Westinghouse's Quality Control and Production Control Departments believed that the wage surveys inaccurately represented their job responsibilities. According to these employees, certain of their job responsibilities were excluded from comparison in the surveys, and Westinghouse refused to consider any portion of their jobs that were also performed by non-Union personnel. No similar restrictions were placed on the evaluations of the job responsibilities of women employed in these departments.
Huffman and other male employees filed grievances, complaining that the implementation of the surveys denied them the opportunity to compete for the highest possible wage scale. Under the grievance-arbitration procedure contained in the collective bargaining agreement between Westinghouse and the Union, a Union steward first presents the grievance to a foreman. If the grievance is not resolved at that level, up to three representatives of management and an equal number of Union representatives meet to try to resolve the grievance. If the grievance remains unresolved, the process is repeated with up to seven management representatives and an equal number of Union representatives. If no satisfactory resolution at that level is reached, the Union may appeal local management's final answer to a national appeal board, where, again, an equal number of management and Union representatives will consider the grievance. If the grievance remains unresolved at the national level, the matter may be referred to arbitration. Not all grievances are subject to mandatory arbitration, however. Certain classes of grievances are arbitrable only by agreement of the parties. If the Union disagrees with the final resolution of the grievance, and it is by its nature not subject to compulsory arbitration, the Union can request arbitration; if the company refuses, the Union's only recourse is to authorize a strike. The collective bargaining agreement contains the following finality provision:
The Company's reply to a grievance will be considered final at any level of the grievance procedure (local or appeal) and the grievance closed, if written notification to the contrary is not received within thirty (30) days of the date of such reply.
The male employees' grievances were processed through every level, local and national, of the grievance procedure. The grievances were not subject to mandatory arbitration under the contract; the Union therefore requested arbitration and Westinghouse denied the request. The Union took no further action and, under the finality provision, the denial of the grievance became final.
Huffman then filed the instant action on behalf of himself and all similarly situated male employees in Westinghouse's Production Control and Quality Control Departments. Huffman's original complaint alleged that the wage survey implementation discriminated against him and members of the class by reason of their sex in violation of 42 U.S.C. § 2000e et seq. Huffman then amended the complaint, adding allegations under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, that Westinghouse had breached the collective bargaining agreement and further allegations that the Union had breached its duty of fair representation by not taking the grievances to arbitration. The complaint was amended once more to delete the allegations against the Union of a breach of the duty of fair representation, and allegations that the plaintiffs had exhausted the grievance procedure were added.*fn1 The district court certified the class.
Thereafter, Westinghouse moved for dismissal of the § 301 claim, arguing that the employees had received a final determination of their grievance under the collective bargaining agreement and were not entitled to proceed against the employer absent proof that the Union had breached its duty of fair representation. The district court agreed, and dismissed the employees' § 301 claims with leave to amend. When the complaint was not amended, the court dismissed the claims with prejudice. The parties settled the sex discrimination claim, and Huffman then filed a notice of appeal to challenge the district court's resolution of his breach of contract claim.
An employee seeking a remedy for an alleged breach of a collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his employer under § 301 of the Labor-Management Relations Act. Clayton v. International Union, 451 U.S. 679, 682, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965).*fn2 If the employee's grievance is processed through an exclusive grievance procedure and the employee receives a determination of the grievance that is final and binding under the contract, he may not then litigate the merits of his grievance unless he can show that the grievance process has been in some manner subverted. The most common way in which employees show that the result of the contractual process should be disregarded is by showing that the Union did not represent them fairly in the grievance procedure; in other words, that it breached its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). If an employee cannot prove such a breach, his contract claim is ordinarily barred by the finality provision of the contract itself. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976).
In the instant action, the employees' grievances were processed through every step of the grievance procedure. The only step left open to the Union to keep the grievance alive was to notify the Company that the Company's answer to the grievance was unsatisfactory and to call a strike. This the Union failed to do. The employees do not claim that the Union's failure to take strike action constituted a breach of the duty of fair representation. Rather, they suggest two reasons why they should not now be barred from pursuing a legal remedy against their employer.
First, they argue that the fact that the union might have authorized a strike in response to the Company's ultimate denial of the grievance establishes that the grievance-arbitration procedure in their collective bargaining agreement was not intended to be exclusive. The employees rely on two of our cases, S.J. Groves & Sons Co. v. International Brotherhood of Teamsters, 581 F.2d 1241 (7th Cir. 1978), and Associated General Contractors v. Illinois Conference of Teamsters, 486 F.2d 972 (7th Cir. 1973), in which we found grievance procedures that ended in permission for the parties to pursue "all economic recourse" to be nonexclusive. In both cases, the collective bargaining agreements provided for grievance procedures that culminated in the submission of the grievance to a joint labor-management committee. Under the contract, if the committee could not reach agreement, the result was a deadlock and the parties were free to resort to strikes or lockouts. The defendants in both cases argued that economic recourse was the exclusive remedy contemplated by the contract and ...