John HUBICKI, Appellant, v. ACF INDUSTRIES, INCORPORATED, Appellee. John HUBICKI, Appellant, v. UNITED STEELWORKERS OF AMERICA and ACF Industries, Inc., Appellees.
Nos. 72-1460 and 72-1712.
United States Court of Appeals, Third Circuit.
Argued April 6, 1973. Decided Aug. 20, 1973.
484 F.2d 519
J. Thomas Menaker, McNees, Wallace & Nurick, Harrisburg, Pa., and David L. Gore, Asst. Gen. Counsel, Pittsburgh, Pa., Bernard Kleiman, Kleiman, Cornfield & Feldman, Chicago, Ill., for appellees.
Before McLAUGHLIN, ROSENN and JAMES HUNTER, III, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This is a consolidated appeal from two
Jurisdiction is founded in
I
When Judge Herman granted ACF‘s motion for summary judgment in the first action, he had before him only plaintiff‘s very short complaint and his affidavit opposing defendant‘s motion. The essence of the complaint is that Hubicki had been employed by ACF from May, 1947 until February 25, 1970, when he was wrongfully discharged in violation of the master collective bargaining agreement between the company and the union. In his affidavit, Hubicki states that his house burned down on February 1, 1970, and that he left work two weeks later, with permission, in order to repair another house so that his family would not have to continue to live with relatives. He admits that he might have received a letter from ACF dated February 24, 1970, notifying him of the termination of his seniority rights, but says that he does not remember either receiving or signing for it and that its contents did not come to his attention until early April, 1970. Shortly thereafter, Hubicki discussed his problem with Chairman Ely of the union grievance committee. Ely tried to get plaintiff reinstated but ACF refused, and he then informed Hubicki that there was nothing else the union could do in his behalf since he had failed to file a grievance within thirty days as required by the contract. Hubicki also claims that he made several unsuccessful attempts on his own to persuade ACF to permit him to present a grievance.
The collective bargaining agreement between ACF and the union provided a complete procedure for initiating and processing grievances.1 Under Section 7-2, any employee with a request or complaint was directed to meet with his foreman to discuss the matter. If the complaint could not be resolved in this manner, and if it involved the “interpretation, application of, or compliance with the provisions of this Agreement,” then it was defined as a grievance by Section 7-3. Section 7-4 required that a grievance not settled within two days under Section 7-2 must be filed in writing within thirty days in order to be considered further.
As Judge Herman correctly pointed out, the law is clear “that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). See Desrosiers v. American Cyanamid Co., 377 F.2d 864 (2d Cir. 1967); Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir. 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967); Broniman v. Great Atlantic and Pacific Tea Co., 353 F.2d 559 (6th Cir. 1965), cert. denied, 384 U.S. 907, 86 S.Ct. 1343, 16 L.Ed.2d 360 (1966). The district court found that no such attempt had been alleged in the present complaint, even when read in conjunction with Hubicki‘s affidavit, and thus it concluded that the allegations were insufficient to state a cause of action and that ACF should prevail on its motion for summary judgment.
Plaintiff‘s next argument is that the district court should have allowed him to amend his complaint since
The last issue in plaintiff‘s first appeal is whether Judge Herman was warranted, after considering plaintiff‘s complaint and affidavit, in granting ACF‘s motion for summary judgment under
“The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact. . . . If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant‘s favor after all the evidence is adduced.” Chambers v. United States, supra, 357 F.2d at 227. (emphasis added)
Plaintiff argues that instead of granting ACF‘s motion for summary judgment, the district court should have treated it as a
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .”
Consequently, when Hubicki submitted his opposing affidavit, it is evident from this section of
Finally, even if we accepted plaintiff‘s argument and held that the motion granted by the district court was in actuality a
For all the reasons above, we conclude that Judge Herman‘s November 4, 1971 order in 72-1460 granting ACF‘s motion for summary judgment must be affirmed.
Two months after summary judgment was granted against plaintiff in his first lawsuit, he filed a second complaint against his union alleging that he was wrongfully discharged by ACF and that the union had arbitrarily, capriciously and without reasonable cause refused to employ the contract grievance machinery to protect his interests. This complaint was opposed by a motion to dismiss for failure to join an indispensable party, whereupon plaintiff filed an amended complaint in bifurcated form joining ACF as a defendant. The only new allegation against ACF that did not appear in the first complaint is set forth as paragraph 11:
“11. Plaintiff had asked Defendant [ACF] to allow him to present a grievance under the terms of the Collective Bargaining Agreement, but the Defendant wrongfully refused to allow Plaintiff to do so.”
ACF answered this second complaint with a motion for judgment on the pleadings on the grounds of res judicata, and the union moved for summary judgment. On June 27, 1972, Judge Muir entered an opinion and order granting both of these motions.
Plaintiff‘s primary contention with respect to ACF on this appeal is that his second complaint stated a cause of action against the company and was not barred by the doctrine of res judicata. This doctrine was explained by the Supreme Court in Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948), as follows:
“The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim on demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment.”
A comparison of the present case against ACF with the one decided by Judge Herman shows that the parties are identical, that the operative facts are all the same, and that the complaint allegations and the relief sought are nearly the same. As we have already noted, only paragraph 11 of the second complaint is new, and even this allegation was contained in paragraph 10 of Hubicki‘s affidavit4 in the first case which was specifically considered by Judge Herman along with the complaint in determining that plaintiff failed to state a cause of action. Consequently, we think that the two suits involve indistinguishable claims for relief, and that the first judgment is conclusive as to all matters relating to ACF and its alleged wrongful termination of plaintiff‘s employment.
Plaintiff also asserts that the first ACF case does not support a defense of res judicata because it was disposed of by summary judgment for failure to state a cause of action and thus did not go to the merits. We reject this argument since earlier in this opinion we held that summary judgment was properly entered in the first case, and the law is clear that summary judgment is a final judgment on the merits sufficient to raise the defense of res judicata in a subsequent action between the parties. See Wight v. Montana-Dakota Utilities, 299 F.2d 470 (9th Cir. 1962), cert. denied, 371 U.S. 962, 83 S.Ct. 541, 9 L.Ed.2d 509 (1963) (district court‘s application of res judicata affirmed where previous district court case involving the same issues had resulted both in a summary judgment against plaintiff for failure to state a cause of action and the dismissal of the action). See also Glick v. Ballentine Produce, Inc., supra.
In his brief on this point, plaintiff argues that his affidavit, especially paragraph 14,5 “overwhelmingly prove(s) the Union‘s breach of its duty of fair representation.” We cannot agree. Paragraph 14 of Hubicki‘s affidavit is nothing more than plaintiff‘s statement that, to the best of his knowledge, the union never submitted the question of the timeliness of his grievance to its legal department for an interpretation. When faced by this argument below, Judge Muir correctly observed that the sole issue in this case is not whether plaintiff‘s grievance was timely raised with the union but is instead whether the union declined arbitrarily, capriciously or in bad faith to process it. There exists no requirement that a union must refer all questions of timeliness to its legal department, especially those such as this which are clear on their face, and the allegation that Hubicki‘s union should have done so, taken by itself, is not enough to show arbitrary or purposeful discrimination by the union.
“Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement . . . In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures . . .
“If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer‘s confidence in the union‘s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. [Citations omitted.] It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by
L.M.R.A. § 203(d), supra , if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration.”
See Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), and Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953).
For all the reasons above, we find that Judge Muir‘s June 27, 1972 order in 72-1712 granting ACF‘s motion for judgment on the pleadings and the union‘s motion for summary judgment must be affirmed.
III
The judgment of the district court in both cases discussed in this opinion will be affirmed.
GERALD McLAUGHLIN, Circuit Judge (dissenting).
On February 24, 1970 appellant was terminated from his employment by his employer ACF Industries, Inc. On April 28, 1971 appellant filed a civil suit against his employer asking for reinstatement and money damages from the defendant company. On May 27, 1971 the defendant company filed a petition for removal to the Middle District, Pennsylvania. Why that petition was granted does not appear. Said company then filed a motion for summary judgment which was also granted on November 4, 1971. The trial court on April 10, 1972 refused appellant‘s motion to allow grievance procedure to be used in connection with the employment contract. Appellant thereafter appealed to this court. Hubicki filed a new complaint. Appellee claims that the fresh complaint was barred by the November 4, 1971 summary judgment (this is said to be presently pending, presumably in the Middle District of the United States District Court, Pennsylvania).
Appellant contends that the Collective Bargaining Agreement between the employer and employee‘s union (United Steelworkers) is helpful to his claim for reinstatement by his employer under the facts. Appellant has been with appellee for twenty-three years, his whole working lifetime so far. In Republic Steel Corporation v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Supreme Court held that employer must attempt the use of contract grievance procedure as to the mode of redress. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). See also the Maddox case above noted. The district court flatly refused to allow appellant to amend his complaint thus putting appellant right out of court. His claim was never disposed of on its merits. We held in Martucci v. Moyer, 210 F.2d 259 (3 Cir. 1954) in a similar situation that summary judgment was not to be allowed as appellant‘s claim was not decided on the merits. At most the court should have abated the action and not bar it completely as was done here. See also Whitner v. Davis, 410 F.2d 24, 31 (9 Cir. 1969), where even with summary judgment against plaintiff under Rule 15(a), he was entitled to an amendment
The first complaint in suit is against the employer and we have seen the latter‘s attitude toward Hubicki.
We now take up the action as to plaintiff Hubicki‘s claim against his union. On February 1, 1970 appellant‘s home in Danville was burned to the ground. For two weeks after that, in the middle of the Pennsylvania winter he tried to repair a house in Danville so that he, his wife and family could exist there for the time being. He had that job fairly well accomplished by February 14. He had already notified his employer that he needed time to put the house he was fixing into livable condition. He had the substitute housing basically ready by April 1, 1970. His own family stayed with relatives meanwhile. A letter from his employer terminating his rights did not reach him until sometime around the beginning of April 1970. He promptly notified his union representative who tried to have the employer rescind its action but was told by his union nothing could be done about it. He then asked the company to allow him to present his grievance in accord with the employment contract but the company refused several times. It comes up clearly that at the first chance the union and employer had at Hubicki in twenty-three years they both betrayed the trust that appellant had an absolute right to expect from the both of them. Hubicki‘s union had the bounden duty to protect the appellant member in his tragic predicament where he had to secure shelter for his wife and children as quickly as possible. The employer knew of Hubicki‘s problem. There is nothing in this entire case that even attempts to charge that there was any fault whatsoever on the part of the plaintiff. There was basically not the slightest effort on the part of the union or the employer to help Hubicki obtain living quarters for his people and himself and so to enable him to return to his job.
The result before us is unconscionable in the brazen disregard by the union and the employer of their duties to Hubicki.
I would reverse the judgment of the district court and order that the union and the employer see to it forthwith that appellant is restored to his job. Whatever wages appellant has lost because of the attitudes of the union and the employer should be ordered to be paid to appellant immediately, half by said union and half by the employer.