decided: March 21, 1988; As Amended, April 8, 1988. As Corrected, April 8, 1990.
Appeal from a summary judgment of the United States District Court for the Western District of New York (Curtin, C.J.) dismissing claim for unlawful discharge and breach of duty of fair representation. Affirmed.
Van Graafeiland, Winter and Mahoney, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge
On August 26, 1985, Howard Wozniak brought this action in the United States District Court for the Western District of New York against Ford Motor Company, his former employer, and International Union, United Automobile Aerospace and Agricultural Implement Workers (UAW) and its Local 897, his union representatives. He alleged that Ford had wrongfully discharged him and that the unions had breached their duties of fair representation in challenging the discharge. (29 U.S.C. § 185). On May 21, 1987, Chief Judge Curtin directed entry of judgment dismissing the complaint on the ground that it was time barred. We affirm, although, as we are permitted, Helvering v. Gowran, 302 U.S. 238, 245, 82 L. Ed. 224, 58 S. Ct. 154 (1937), we do so on grounds different than those relied on below.
Article VII of the 1982 Collective Bargaining Agreement between Ford and the UAW describes the procedure to be followed in the handling of grievances. Disciplinary grievances are heard first at a Unit Grievance Meeting attended by not more than four Company and not more than four Union representatives. If the grievance is not disposed of satisfactorily at this stage, the matter is appealed to the Plant Review Board, which, in a single plant area as here, consists of two persons representing the Union and two persons representing the Company. "The Union representatives shall be an International Representative designated by the Regional Director of the area, who shall be the ranking Union representative, and the Chairman of the Unit." The agreement also provides that the designated representative of the Regional Director "shall have the power to settle or withdraw on behalf of the Union any case or cases appealed to this level of the procedure, either before or after . . . disposition by the Company is received, that in his judgment does not merit appeal to the next step," i.e., to an impartial Umpire.
On April 19, 1984, Wozniak was discharged because he brought a loaded pistol onto the plant premises in violation of an established Company rule. His grievance, directed primarily at the severity of his penalty, was rejected following hearings before both the Unit Grievance Meeting and the Plant Review Board. Thereafter, Bill Smigelski, the representative of the Regional Director, decided that the grievance did not merit further review, and withdrew it.
The UAW Constitution provides that any challenges to the act of a Regional Director shall be made first to the International Executive Board and then to either the Convention Appeals Committee or the Public Review Board. The appeal to the Executive Board must be by a specific, detailed and complete writing signed by the member. It must be taken within thirty days "from the time the appellant first becomes aware, or reasonably should have become aware, of the alleged action or decision appealed." The Constitution also provides that it shall be the duty of every member to exhaust the remedies prescribed therein before going to court for redress.
Wozniak was informed of the withdrawal of his grievance by a certified letter dated September 6, 1984, from Nicholas LaRosa, the President of his Local. Instead of appealing Smigelski's decision to the International Executive Board within thirty days, as the Union Constitution required, Wozniak sought relief from his Local, number 897. On September 26, 1984, he wrote to the Recording Secretary of Local 897 asking that the Local's members overrule the decision to withdraw his grievance. On October 14, 1984, the members voted in favor of reactivating Wozniak's grievance.
When Smigelski learned what Wozniak had done, he wrote Wozniak on October 19, 1984, informing Wozniak that he was following the improper appellate procedure. Smigelski stated that it was he, Smigelski, who decided to withdraw Wozniak's grievance; he referred Wozniak to the section of the Constitution above described, which provides for appeals to be taken to the International Executive Board. Smigelski concluded his letter by advising Wozniak that he had the right to reappeal his case under the proper procedure.
Wozniak failed to heed Smigelski's advice and appeal to the Board. Instead, his attorney wrote Smigelski stating in substance that, because the September 6 letter came from LaRosa, Wozniak assumed that the appeal should be taken to the Local. The attorney then simply suggested that Smigelski review the minutes of the Local's membership meeting.
It was not until March 13, 1985, that Wozniak's attorney wrote to the International Executive Board requesting that his client's grievance be reinstated and set down for arbitration. In response to this letter, the Administrative Assistant to the UAW President wrote Wozniak informing him of the above-described constitutional requirements that appeals to the Executive Board must be in a writing signed by the member and must be made within thirty days of awareness or imputed awareness of the decision appealed from. After stating that appeals must be initiated and pursued in this manner in order to be considered as timely, the letter continued:
In view of the foregoing, it is patently obvious, and there is no contrariwise opinion evinced in the enclosed letter referenced herein, that an official and timely appeal of the issue in controversy has been registered with the International Union, UAW Executive Board.
Because the constitutional requirements for an appeal had not been met, it is clear that the above-quoted sentence did not say what the Administrative Assistant intended it to say and that a mistake in the transcription had somehow gotten by him. Viewed in its entirety, this letter cannot be construed as a waiver of Wozniak's failure to satisfy the constitutional requirements of a timely appeal.
The district court held that appellant's action was barred by the six-month limitation period prescribed in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), and held applicable in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-72, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), to hybrid section 301/fair representation claims, the type of claim made in the instant case. The issue of timeliness need not be reached, however, if appellant had no right at all to sue. In Clayton v. Automobile Workers, 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981), the Court held that despite the presence of a clause in the Union Constitution requiring exhaustion of internal appeals before judicial relief is sought, exhaustion will not be required if it cannot result in reactivation of the employee's grievance or an award of the complete relief sought. Id. at 685. Although the UAW alleged as an affirmative defense in the instant case that Wozniak had failed to exhaust his internal union appeal procedures, the adequacy vel non of those procedures was not discussed in the summary judgment motion papers. However, at oral argument, the attorneys for the Union and Ford informed this Court that, ...