Appeal from an order of the United States District Court for the Western District of New York, John T. Elfvin, District Judge, dismissing appellant's claim for failure to exhaust intraunion remedies. Reversed and remanded.
Before Kaufman, Kearse and Bright,*fn* Circuit Judges.
Carl Johnson brought this wrongful discharge action against his employer, General Motors Corporation (GM), under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976). Johnson also filed suit against the International Union, United Autoworkers (UAW), and its local union, Local 424 (Local), claiming that the unions breached their duty of fair representation in failing to arbitrate Johnson's wrongful discharge grievance against his employer. The district court entered summary judgment dismissing the action against all defendants on the ground that Johnson's failure to exhaust his internal union remedies precluded his bringing suit in district court. We reverse the dismissal as to all three defendants and remand for further proceedings.
For purposes of this appeal, we consider as true the factual allegations in the complaint as supplemented by the affidavits filed by the parties.
This lawsuit arises out of a dispute between Carl Johnson, an employee of GM, and his foreman at GM's Chevrolet Delavan Plant in Buffalo, New York, on June 17, 1976. The foreman alleged that Johnson threatened him following a disagreement over production-line work. Johnson denied the accusation, but GM fired him because of the incident.
Johnson then filed a grievance, which the Union processed through the first three steps of the grievance procedure set forth in the collective bargaining agreement: step 1 attempted adjustment of grievance at the shop level; step 2 appeal by the local union shop committeeman to the plant labor relations board; and step 3 (in which the International Union assumes representation of the union member) appeal to a four-man appeals committee.
On January 24, 1977, the UAW appealed Johnson's grievance to an impartial umpire for binding arbitration as the fourth and final step of the grievance procedure. Sometime thereafter, however, the UAW withdrew the grievance before the umpire heard the appeal.
After the UAW withdrew the grievance, Johnson filed this suit. Johnson alleged that GM fired him in violation of the National Collective Bargaining Agreement and that the UAW and the Local breached their duty of fair representation in handling his grievance. Johnson maintained that the president and members of the Local, because of personal hostility towards Johnson, conspired with the International to deprive Johnson of his full grievance remedies.
The materials presented to the district court by the defendants in support of their motions for summary judgment focused solely on the question of exhaustion of internal union remedies. The affidavits set forth the intraunion procedures by which a union member may appeal from an adverse decision of the Local or International. According to the affidavits, certain claims against union officials may be appealed to an independent Public Review Board (PRB). An employee can use this procedure, for example, when a union member alleges improper handling of a grievance due to fraud, discrimination, or improper collusion with management. The PRB may review claims of bad faith and can direct the union to pay any and all wages or benefits lost as a result of the wrongful withdrawal of a grievance.
Johnson's affidavit in opposition to the motion for summary judgment relies essentially on his lack of awareness of the available internal union procedures and on the local president's statement that "nothing more could be done for my grievance after it was removed from the arbitration schedule." Johnson's complaint, however, specifically alleged in paragraph 28 that
Plaintiff has, in good faith, exhausted all reasonable grievance procedures available to him under the National Agreement, the Constitution of the International Union and the by-laws of the Local Union; and by reason of Defendant Unions' above mentioned hostility and discriminatory attitude toward the plaintiff as well as their connivance, collusion and conspiracy with Defendant Corporation regarding plaintiff's discharge, and further resort by plaintiff to additional intra-union grievance procedures would be futile.
Notwithstanding this allegation, the trial court assumed that "(plaintiff) does not claim that the (union constitutional remedies) are inadequate or that resort to them would have been futile." The trial court construed Johnson's complaint as contending only that "he should be excused from exhausting such remedies because he was unaware of them" and that "the president of Local 424 told (plaintiff) that nothing more could be done for (his) grievance after it was removed from the arbitration schedule."*fn1 Holding that these allegations were insufficient to excuse exhaustion as a matter of law, the district court dismissed the complaint.
II. Exhaustion Against the Union.
As against the unions, Johnson argues on appeal that the district court erred in summarily dismissing for failure to exhaust intraunion remedies because the unions failed to apprise him of available remedies and, in fact, affirmatively misinformed him of his rights. He also argues that the constitutional provisions that may have afforded him relief were so ambiguous that he was denied any reasonable basis for relief. We believe Johnson's contentions create a significant dispute concerning the reasonableness of the available intraunion appellate remedies such that the grant of summary judgment was inappropriate. We therefore reverse and remand for further proceedings.
A court may require an employee to exhaust intraunion remedies prior to bringing suit against his union. This requirement, however, is not absolute; rather, it is discretionary with the court. NLRB v. Industrial Union of Marine & Shipbuilding Workers (Marine Workers), 391 U.S. 418, 426, 88 S. Ct. 1717, 1722, 20 L. Ed. 2d 706 (1968); Clayton v. ITT Gilfillan, 623 F.2d 563, 566 (9th Cir.), cert. granted, 449 U.S. 950, 101 S. Ct. 352, 66 L. Ed. 2d 213 (1980); Geddes v. Chrysler Corp., 608 F.2d 261, 264 (6th Cir. 1979); Baldini v. Local 1095, UAW, 581 F.2d 145, 148-49 (7th Cir. 1978); Chambers v. Local 639, IBT, 188 U.S. App. D.C. 133, 578 F.2d 375, 385 (D.C.Cir.1978); Buzzard v. Local Lodge 1040, 480 F.2d 35, 41 (9th Cir. 1973); Neal v. System Board of Adjustment, 348 F.2d 722, 726 (8th Cir. 1965).
The court, however, must exercise its discretion in light of Congress' concern over preserving the right of union members to sue over violations of their rights. Section 101(a)(4) of the Labor Management Reporting and Disclosure Act (LMRDA) provides:
(4) Protection of the right to sue. No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding * * * Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof * * *. (29 U.S.C. § 411(a)(4) (1976).)
Except to the extent permitted by the final proviso, therefore, Congress prohibits unions from interfering with their members' right to bring suit. This proviso has been construed, not as an extension of authority to unions to police their members, but as
a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. (NLRB v. Marine Workers, supra, 391 U.S. at 426, 88 S. Ct. at 1722 (emphasis added).)
This court stated in Giordani v. Upholsterers International Union, 403 F.2d 85 (2d Cir. 1968):
It is now beyond question that the statutory exhaustion requirement does not give the union authority to compel its members to pursue internal remedies before resorting to the courts, but rather preserves the discretionary exhaustion doctrine as it had been ...