John Schultz v. Owens-Illinois Incorporated and District No. 9, International Association of MacHinists and Aerospace Workers

COFFEY, Cirсuit Before CUDAHY GRANT,* Judges, District Senior Judge.

CUDAHY, Judge. Circuit this court held prior appeal, In a relief un state a claim for plaintiffs could Labor-Manage 301(a) of the der section “LMRA”), (the 1947 ment Relations Act of alleged an 185(a) (1976), for 29 U.S.C. § by duty representation of fair breach union, Ma District No. 9 of the (the “Uni International Union chinists’ there was such on”).1 We also found that 301(a) section potential a claim under Owens-Illinois, plaintiffs’ employer, against alleged (“Owens”), based Owens’ Inc. in an involving rights breach of contract v. Owens- program. Schultz (7th Cir.1977), Illinois, Inc., F.2d 849 560 770, 1035, 54 denied, 98 cert. 434 U.S. ”). Upon I (1978) (“Schultz L.Ed.2d 783 trial, I, jury was a of there remand to reach a verdict jury but the was unable * 159(a) (1976), Grant, 29 § Act of U.S.C. District tions Robert A. Senior Honorable Indiana, Moore, Humphrey Judge of is v. 375 U.S. for the Northern District see Corp. sitting by designation. (1964); 11 L.Ed.2d 370 Wallace NLRB, 89 L.Ed. 323 U.S. complaint, plaintiffs claim that 1. In their alleging (1944), breach of the a and a claim rep statutory duty fair of Union breached “its cognizable duty representation under of fair owing under ... resentation 301(a). Although particular union conduct § By way Complaint seq.” 10. U.S.C. 414 et § duty representation may of fair violate both clarification, duty of fair we note that LMRDA, obligations under the union’s and the representation arise under 29 U.S.C. does not see, e.g., Aguirre Teamsters concerning rights (1976), provision § Cir.1980), plaintiffs here have not sat copies receive of collec of union members to procedural re or substantive either the isfied bargaining agreements, oth nor under tive stating quirements of action under a cause for Labor-Management Report provisions er disregard plain shall thus the LMRDA. We (“LMRDA”), ing and Disclosure Act of apparent § 29 U.S.C. reliance on tiffs’ Rather, near § which are codified fairly duty represent members is its union’s implied 9(a) Rela the National Labor from § and Ow- agreement between Union ing The court was declared.

and mistrial ens, provides pertinent part two de motions of the granted the then Fed.R. for directed verdict. See fendants shall journeymen [rjatio apprentices relied on The district court 50(b). Civ.P. present or subse- conformity be in evidence including lack of grounds, several agreements betweеn quent bargaining representa fair of a breach of If pro- District No. 9. employer con and of a breach by tion agree- employer’s bargaining vision of an plain Owens, as well failure tract sub- cover the specifically ment does not ab and an timely grievances tiffs file journey- apprentices of ratio of ject damages. ap Plaintiffs proof sence men, following apply. then the shall the directed verdicts pealed and we affirm (1) may employed apprentice One in favor of defendants. both eight (8) journeymen. each became concerned During Owens BACKGROUND I. the of machin- journeymen about number in I sets out Although opinion the the employed Godfrey and plant ists at the of this background much of the factual maintaining a number of high large cost of case, 851-53, out- at we shall see 560 F.2d employees in that classification.3 facts adduced at trial line certain additional journeymen had out of a total Owens present is- which we think relevant to the more approximately work force of sues. accommodate; it could journeymen than re- journeymen apparently this excess of bargaining Prior to 1971 collective certain to sessions, diligent inter- from of adherence years Union sulted both Owens the ap- prescribed ratio in the bargain- one-to-eight the preted a clause in their collective with a low prenticeship program, combined ing agreement establishing Apprentice- an many jour- Consequently, as turnover rate. ship Training Program requiring Owens less than performed jobs requiring of apprentice neymen to maintain a ratio one for journeyman’s But Owens eight experience. machinists em- every journeymen was, course, required higher of to the Godfrey, pay at in ployed plant Owens’ Illinois. for such clause, journeymen’s wage this work. pertinent provision The of changed which was 1968 to from consequent To inflated labor address reads: cost, to proposed Owens the Union apprentices The of shall normal ratio be negotiations in the lan- contract 1971 that (8) jour- (1) one to apprentiсe every eight changed of so that guage the contract neymen department. Apprentices in the interpreted the contract could not be 8,000 hours period shall serve for a in require apprentice Owens to maintain one Apprentice- accordance with the Federal every eight (and permit- journeymen for (Emphasis ship Agreement. Standard ting reduce the number of enter- Owens to supplied.)2 at least ing apprentices). Owens submitted regard the Union Apprenticeship proposals Article 18 of the four Federal re- apprenticeship 1500 un- ratio but the Union Agreement covering the Standard each did not shops jected proposal. ion the Union’s encompassed within be- incorpo- change language is want to the contract geographical jurisdiction, which numer- bargain- language in the cause similar used in rated reference collective sliding-scale Apprentice bargaining agreement In the effec- 3. machinists collective receive journey- percentage wage paid rate tive from 1978 to Owens and the Union of the men, language depends upon apprentice’s an total modified the this clause read: which may apprentices example, experience; employment “The ratio of be one normal hours of (1) apprentice every eight (8) journeymen apprentice 1000 total a new with less than department.” (New language emphasized.) journey- experience paid hours of the 58% language language new is similar to the men’s rate. Apprenticeship used the Federal Standard Agreement. text infra. membership the Union meeting A bargaining agreements, collective ous other December was held in plant Godfrey in the Union’s an alteration contract. proposed alterations in portend ratify 1971 to with Owens he chaired Nonethe- trial that employers. other testified at contracts with Hemken eco- the serious member- less, recognized meeting reported the Union applica- of a strict existing ap- nomic effect of the interpretation ship Therefore, ratio. one-to-eight tion of the Union agreed clause prenticeship the. representative chief the Union’s Tr. at and Owens. negotiating committee Hemken, of- Wilbert agent, and business other on the plaintiffs, 792. Several charge persons fered to contact nothing at hand, Hemken said testified that program apprenticeship administering interpretation this new meeting about Owens’ concerns determine whether However, plain- each of clause. mandatory nature apparent about on cross-examina- except one conceded tiffs could be satisfied ratio whether the he could not recall tion that existing con- the framework of within meeting. ever discussed at clause was language. tract Schultz), 164 Mr. (testimony Tr. at Harcourt, Baumann), (testimo- Michael Mr. approached (testimony Hemken Apprentice- Doran). Bureau of Mr. representative ny of Depart- Training, United States ship and agreement ratified the After the Union 1971, Labor, about in November ment 1971, did not in Deсember Owens reached clause. of this contract interpretation the appren- in the apprentices new place any that the one-to- advised Hemken Harcourt the month- At several of ticeship program. ratio clause contained eight apprenticeship 1972, held in meetings ly grievance bargained by the Union in contracts in it placing and the program, the the ratio mandatory; and not discretionary Both were discussed. apprentices, of new employer, the accord- applied by was to be Hemken consist- management and Owens’ Harcourt, to reflect its adjusted to as ing apprenticeship the maintained that ently Tr. at 783-87 apprentices. own needs for that, not been abandoned but had program Harcourt). Hemken also of Mr. (testimony understanding of No- the oral to pursuant Assistant Direct- Specman, contacted Fred ap- new place Owens could vember for the Union’s ing Representative Business on an “as needed” program in the prentices negotia- the supеrvised District No. who were cur- apprentices no new basis—and more than 1500 tion and administration of many of the Although needed. rently the testified that Specman labor contracts. virtue of se- eligible (by plaintiffs became had apprenticeship committee District No. apprenticeship in the placement for niority) that, than informed Hemken of the more during period, employees this no program lan- containing comparable 750 contracts protesting with the Union grievance filed a impose on guage, none was construed pro- in the place failure to them Owens’ mandatory apprentice-to-jour- employers gram. (testimo- ratio. Tr. at neyman was also an apprenticeship program The Hemken in turn re- ny Specman). of Mr. of con- in 1974 the next round issue non-mandatory inter- ported prevailing this requested negotiations. The Union tract com- negotiating to the full Union pretation review the ex- thoroughly parties plant. The com- Godfrey mittee at Owens’ and asked program isting apprentiсeship accept interpreta- voted to this mittee then pro- in the apprentices placed that new its action to Owens. Tr. report tion and to to discuss agreed gram. Although Skelton). of Mr. Based (testimony at 244 amended final its final and program, appren- understanding existing retained the to the Union offers rather than discretionary ratio was ticeship rejected The Union language. contract negotiators and Ow- mandatory, a strike. The final offers and called 1971to leave agreed orally ens November apparently prompted which main issues unchanged. language the contract hourly employ- however, presently insurance and We have strike, wages, were indeed, your Bargaining Unit. Of this some of the ees pensions; machinists, total, apprentice- which not even aware that master were outstanding unre- was an our program represents hourly 57% of workforce. ship See, at the time of the strike. over- solved issue to have an Company continues The Coates), Mr. e.g., (testimony at 523 tr. master machinists. supply sev- Warren). Mr. After (testimony App. Plaintiffs’ at 31. collec- weeks, and a new en the strike ended requested then a face-to-face Hemken was ratified. agreement bargaining tive meeting Bailey with on as language agreement retained This step of the contrac- authorized the third clause. existing apprenticeship procedure. After meet- tual interpretation of the Owens’ response accepted Hemken Owens’ ing, relating apprentice-to-journey- clause informed Schultz that he non-mandatory Owens’ man ratio last not take the appren- new in the place people failure binding of final and arbitration. In step cause of continued to be a ticeship program Schultz, explained de- letter to Hemken his employees among some of the concern cision as follows: April 1974 and throughout have an Company obligation Does Schultz, employee, plaintiff John an Owens at all apprentices to maintain times the first formal apparently filed what was (1) apprentice every ratio of one involving grievance4 (8) eight Master Machinists? that Ow- grievance alleged The program. is; no, they answer do not [sic] ens breached collective if apprentices there is have maintain agreement maintaining a one-to- shop. no need for within the apprentices ratio. eight apprentice-to-journeyman language ratio purpose at 30. his own admis- App. By Plaintiffs’ proper training retain the ratio for and to sion, appoint- had been qualified adequate qualified have an number more than two program ment to the for journeymen properly ... available years filing grievance. preceding apprentices .... train instruct event, griev- In Hemken forwarded any other any Company or is Owens-Illinois initiating the con- thereby ance to Owens obligated keep not a work force for Bai- procedure. David grievance tractual production is for which there no need or Relations, ley, Director of Industrial Owens’ requirements. maintenance letter, stat- grievance by to the responded ing part: 34-35; App. see tr. at 808 Plaintiffs’ at Negotiations, Hemken).

As a result of the 1971 No (testimony of Mr. other em- essentially the Company continued ployees qualified apprenticeship pro- for the Ar- language Apprenticeship Schultz, same grievance. other than filed a gram, however, ticle, understanding with a new 1976, August shortly after But Schultz ‍‌​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​​‌​​​​​‌​​‌​‍Company longer obligat- that the was no accepting received Hemken’s letter Owens’ any maintain ratio. The particular ed to lawsuit response Schultz’s then not add Company decided to was filed. and al- program, new apprentices II. THRESHOLD ISSUES program on the apprentices already

low court, declaring a The district after appren- program. The last to finish mistrial, granted defendants’ motions was Arlin complete program tice to Thus, our verdicts. standard of Schaefer, training and he his directed completed is whether there was sufficient evi- 1975. review May on testimony indicating misplaced. not We need resolve was at trial been lost There any dispute point grievаnces here on this because the on the issue other filing may is sufficient to con- filed concern- of Schultz’s have been but that records inífa, § 301(a). jurisdiction alleged grievances apparently See ing II. § such had fer under contract, jury quired by dence which a could have entered thus depriving the plaintiffs. Wright jurisdiction a verdict for 9 C. court of against over the claims Miller, and A. Federal Practice and Proce- both Republic defendants under Steel. weigh dure We the Both may appeal defendants assert on § rather, evidence or determine credibility; to district court correctly applied the law to determine whether were plaintiffs entitled these undisputed facts. go jury, have their case we must Justice Harlan wrote in Republic assess the evidence in the light most favor- .., . general Steel rule federal “[a]s able to plaintiffs.5 labor policy requires that individual em appeal, present- On both defendants have ployees wishing griev to assert contract arguments (relating ed failure ances must attempt use of the contract plaintiffs most grievances file and the grievance procedure” ju before requesting alleged untimely filing of the griev- dicial intervention. 379 U.S. at ance) which, accepted, if would preclude a at 616 (emphasis original). S.Ct. But the against suit each of them under section Republic rule of Steel is not absolute. 301(a) of the LMRDA. The Union also Glover v. St. Railway, Louis-San Francisco asserts that suit is barred as to 324, 329-30, 548, 551-552, U.S. S.Ct. both plaintiffs defendants because the (1969), 21 L.Ed.2d 519 Justice Black noted

failed to exhaust intraunion remedies. Al- “that requirement subject the exhaustion though arguments merit, these are without exceptions to a number of variety for a we need to address them in some detail here situations in which application doctrinaire as relate they jurisdiction. to our of the exhaustion rule would defeat purposes overall of federal labor relations A. Failure to File Grievances and Failure policy.” exceptions One of these involves Timely File Grievances show, Glover, facts which did in plaintiffs district court held that the “that a pursue formal effort to contractual other than Schultz could not maintain this or administrative remedies would be abso against suit both Owens and the lutely futile.” 393 at U.S. under the principles Republic announced in 552 (emphasis supplied).6 Maddox, Corp. Steel U.S. (1965), us, 13 L.Ed.2d 580 because In the case before once Schultz’s grievances failed to file un- grievance rejected, it would have been der mandatory pro- futile for the other than Schultz Moreover, cedure. the court also found grievances.7 to have filed This is not a case that Schultz had failed to comply with the involving an individualized where collective bargaining agreement Union, because reviewing his after the particular grievance claim, was not filed within three work- facts of another employee’s might ing days of the challenged action as re- pursue grievance reject- decide to that after parties objected Co., 5. None Equip. of the has to the some- cedures. See Battle v. Clark procedural posture (7th Cir.1978). what unusual gener- in which this F.2d See presented By granting case has beеn Ford, to us. ally Chesapeake Ry. and O. 590 F.2d verdicts, motions for directed the district court (4th Cir.1979). 558 n. 2 law, has determined that as a matter of there is (even jury no issue to be submitted to the 7. We also believe that Owens and the Union though previously the court had submitted the probably collaterally estopped raising are from jury). effect, court, case to the In the district argument. case, appeal this In the first of this mistrial, declaring ques- after a returned to the plaintiffs we determined could state a gone tion whether the case should have representa- claim fair for breach jury and determined that it should not have. part tion in because “it would have been futile plaintiffs griev- for the other to file similar portion quotation 6. The of this which we have Plaintiffs, however, ances.” 560 F.2d at 856. emphasized answers, view, by in our the claim argument did either not make this below or on futility exception the Union that the Glover thus, appeal unnecessary this and we think it is applies only to the exhaustion of intraunion appeal. to consider the issue anew on this grievаnce pro- but not to contractual remedies timely to file a if failure But even Rather, relating the facts ing Schultz’s. appren- for the available defense would be an employees qualified grievance all the con- are the same. The ticeship program case,9 not believe 301(a) we do this section these employees claims of each of tract is facts here this defense that under the not employees have also identical: these or the Union. to either Owens available because Owens placed program been in the defendants, if they We think interpreted erroneously the Union have failing to not waived the defense have maintenance requiring the contract as not untimely as object grievance to Schultz’s Thus, one-to-eight of a ratio. when litiga of this after the commencement until rejection of Union assented to Owens’ tion, equitably estopped from are at least claim, adopted posi- it in effect a Schultz’s The doc raising the defense at this time. similarly claims of the rejecting tion equitable estoppel may preclude trine These circumstances plaintiffs. situated asserting a claim or defense litigant from support our sufficient evidence provide preju would be opposing party when have been futile for the belief that it would failure to raise the litigant’s diced before the pursue their claims plaintiffs Audit proceeding. in an earlier See claim Union.8 Services, Rolfson, 757, 761- Inc. v. 641 F.2d of the timeliness question On the (9th Cir.1981)(applying equitable estop court grievance, the district found Schultz’s case, 301(a) suit). In this pel in section grievance his had failed to file that Schultz and the Union misled Schultz specified by the three-day period within the about the timeliness of the other the court bargaining agreement; collective grievance by considering the merits thus concluded that this suit under section steps the three claim Schultz’s 301(a) was barred as to both defendants. objecting without grievance procedure court to determine Although the declined If either the the lack of timeliness. underlying when the claim precisely griev objected or Owens or both had accrued, grievance the district Schultz’s filed, it untimely as when it was is ance that, since had first court was sure groundwork could inconceivable that program in the qualified placement filing timely laid for the of a have been filing than two before this years more and the claim could thus have untimely. grievance, must be addition, exception to the one at bar where a court another to the exhaus- case similar potential- requirement Republic 301(a) Steel is tion for failure file a dismissed a suit § ly applicable here, when, case. At least one court timely grievance (the Circuit) determined that if a Ninth has apparently accepted by act- the union and grievance seeks modification of the collective upon by employer. Typically, ed the failure agreement, principles exhaustion timely grievance to file a is an issue when sought applicable because the relief are not party attempts compel arbitration under grievance procedure. through unattainable see, 301(a), e.g., Tobacco Workers § Ass’n, Maritime Williams v. Pacific Corp., (4th Local 317 v. 448 F.2d 949 Lorillard Cir.1980); F.2d Beriault Cir.1971); Flatgap Mining UMW Dist. 28 v. Checkers, ILWU, Super Cargoes Local Co., or, (W.D.Va.1980); F.Supp. (9th Cir.1974). Here the may timeliness of become relevant effectively seek to alter union- employee attempts where the to excuse his company joint interpretation of the collective grievance procedure failure to use the contract bargaining agreement. Although plaintiffs pur- by timely claiming not file a that he could port agreement to contend that the written was See, grievance. e.g., v. Bechtel Power Cronin improperly construed rather than that 16, (M.D.Pa.1979). Corp., F.Supp. 499 agreement, a modi- seek a modification of that nor the defend- But neither the district court analysis fication is not irrational. We think that, holding pointed case ants have to excuse the there was sufficient evidence employee grievance plaintiff files a where the plaintiffs other than Schultz under Williams employ- the union and which is acted exhausting their contract and Beriault from er, employee in a subse- must demonstrate remedies. 301(a) timely griev- quent suit he filed a that § such a lack 9. We have serious doubts whether infra, note 10. ance. See in can ever be asserted timeliness defense 301(a). found no this suit under We have §

513 could, extent, discretion, in been To this we are court the exercise of its preserved. reasonably require relied on union members to exhaust intra- persuaded object resorting failure to union remedies before to lawsuits Owens’ and Union’s thus, against employer both the and the union both defendants should be es- 301(a). To asserting guide the timeliness de- under section the exercise topped from discretion, Cf. Southwestern of this the Court noted that appeal.10 fense on this 738, Electric Power Co. v. Local Union No. require exhaustion of intraunion remedies ‍‌​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​​‌​​​​​‌​​‌​‍Workers, Electrical 929, 301(a) in suit against 932 a section union Cir.1961) (employer estopped challenge employer inappropriate and the would be to follоw all when the union remedies could neither rein- arbitration for union’s failure grievance when state the nor procedures employer provide directly never for the union ground justification requested by asserted this for re- relief member. 689, lawsuit was com- at at 2095. fusal to arbitrate until U.S. S.Ct. menced). us, In the case before we believe we should decline to exercise our discretion to Intraunion

B. Failure to Exhaust require to exhaust the rem- Remedies in edies outlined the constitution The plain Union also asserts Machinists International Union. Even if tiffs’ action is barred because none of the exhaust these intraunion reme- plaintiffs' exhausted their intraunion reme dies, extremely it is doubtful whether dies before lawsuit.11 filing argu This could, three-day Union because of the time ment, however, Supreme is defeated contract, limit filing provided UAW, Clayton opinion Court’s recent Cf. or grievances. reinstate reactivate the 679, 2088, Clayton, U.S. L.Ed.2d 538 at U.S. (1981). Clayton, (exhaustion In said that a not required Court where union could upon by 10. The cases relied binding requiring the district court under a сontract arbitration. point clearly distinguishable. on 'this See United Steelworkers of America v. Enter- Indus., Inc., (3d Hubicki v. ACF Cir.1973), 484 F.2d 519 prise Corp., Wheel & Car 363 U.S. 80 S.Ct. process the union refused to the em- 4 L.Ed.2d 1424 ployee’s grievance grievance because the could timely employer not be filed with the as re- 11. It is unclear from the record whether the quired by bargaining agreement. the collective argument raised this the district court. The Hubicki court held that the union had ar- employers may Although also raise this defense legitimate, good ticulated a faith reason for its where exhaustion of intraunion remedies which, uncontroverted, refusal to act because might provide reactivate the entry summary judgment allowed the in fa- sought grievance, Clayton relief in the see vor of the union on the claim of breach of the UAW, 679, 695, 451 U.S. 2098- representation. appo- of fair This is not Owens, (1981), 68 L.Ed.2d 538 in contrast site to the claim here that Schultz’s suit is Union, argument has not raised this on 301(a). barred under § appeal apparently did not raise it in the The district court also cited Chambers v. argument district court. If the was not Corp., (6th Cir.1968). Beaunit 404 F.2d 128 below, not, presented ordinarily we ab- employee There the filed a which the circumstances, special ap- sent consider it on union took to arbitration. The arbitrator dis- LaSalle, peal. City See Harl v. 679 F.2d 123 however, missed the it because was (7th Cir.1982). apparently sup- timely filed under the contract. The em- port argument of its assertion that ployee then filed a breach of contract suit below, presented phrase quotes a from the dis- against employer 301(a). under § “plaintiff[ trict court’s order which states that ] court held that the arbitrator’s decision was his union remedies.” Read in initiate failfed] binding, premised upon final and if even it was context, persuaded we are not that the district timely grievance, the failure to file a and that phrase court intended this to refer to intra- employee could not avoid the arbitrator’s remedies, union in contrast to contract reme- ruling by filing 301(a) action. The Cham- § Nevertheless, argu- dies. we will consider the bers timely court did not hold that a ambiguity ment here both the because of prerequisite 301(a) was a to a suit under but § district court’s order and the somewhat unset- merely principle reaffirmed the basic that an Clay- legal prior tled status of this issue grounded properly arbitrator’s decision in the ton decision. bargaining agreement ordinarily collective is may representation of fair cases fifteen-day Duty due to not reactívate First, there are those nor Owens forms. limit). the Union take two time Neither not raise claims that the union predicated upon would cases represented has arbitrator, before an in a collective duty negotiating timeliness issue breached its the Second, would uncertain if an arbitrator there are agreement. and we are bargaining estoppel to the by principles be bound its alleging that the union breached cases limit waived. Cf. three-day consider bar administering the collective in duty Union, Local v. Loril Workers Tobacco (e.g., processing gaining agreement Cir.1971) Corp., 448 F.2d lard Leffler, Duty Piercing grievance). See timely whether (question Dichotomy Be Representation: of Fair anew arbitra may filed be considered Han Negotiations and Grievance tween we do not believe tor). Similarly, Supreme 1979 U.Ill.L.F. 35. dling, relief provide could directly this dichoto implicitly recognized has Court i.e., placement sought by plaintiffs, standard in each defining a different my by Under these apprenticeship program. There is situations. of these two different circumstances, unjust would be we think it a union’s con appraising one standard for uncer to exhaust require out of union ac when a claim arises duct intraunion remedies as inadequate tain and with an negotiating agreements tions against to this suit prerequisite when a different standard employer and and the Union.12 union’s administra claim arises from a agreement, of the collective tion III. BREACH OF THE DUTY OF FAIR processing especially in the context REPRESENTATION grievances. grant As another grounds of the Thus, ing Huffman, directed verdicts in favor of both de in Ford Motor Co. v. 681, fendants, 97 L.Ed. 1048 the district court concluded that 345 U.S. (1953), plaintiffs “no Plain claimed that their union support there was evidenсe to engaged duty representation by tiffs’ claim that in breached its of fair [Union] agreeing granting conduct towards its members which was in to a contract clause se representation.” spent of the of fair credit to for time duty niority employees breach 16,1980, at 2. The service. In the course of Sept. prior military Order of ‍‌​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​​‌​​​​​‌​​‌​‍breach of is, course, claim, duty representation rejecting recognized of fair the Court against obligated represent the heart claim that the union is “to all Moreover, plaintiffs’ against appropriate Union. claim members of an unit [and] representation Owens fails unless the fair make an honest effort to serve the interests members, A against hostility claim the Union succeeds. of all those without represen of fair any.” breach of the Union’s at 73 S.Ct. at 686. The U.S. prerequisite employee recognized nego tation is a suit Court also that in contract when, here, complete as the col tiations satisfaction of all 301(a) under section “[t]he bargaining agreement represented hardly expect lective vests exclu who are is be And, in the ed.” 345 at 686. authority process grievances sive U.S. that, Supreme warned when as Sipes, Union. Vaca v. 386 U.S. Court of the union in the sessing conduct L.Ed.2d attempted concurring opinion 12. The tack taken exhaust intraunion remedies or complaints. respect intraunion to have filed to the exhaustion of for the other Further, complaint subject remedies and the timeliness of since the matter before us is injury alleged perhaps apt injury arising be if the arose out of not an out of administration However, contract, the administration of the contract. it much more difficult where, here, alleged injury (for as arises instead arose determine when Schultz’s agreement limit) three-day purposes out of an struck collective in the context griev- bargaining, disposition continuing agreement of Schultz’s between Owens and foregone ance was a conclusion. It could the Union. therefore seen futile for Schultz to have

515 of employer, employees with the the demands diverse as it had nеgotiating course of in Huffman. Instead, of reasonableness must be range empha- wide the Court “[a] statutory bargaining representa- allowed a the union’s statutory obligation rep- sized serving represents, tive in the unit it sub- employee resent each individual fairly, with faith and hon- ject always complete good nonperfunctory complaints concern for his in the exercise of its discre- esty purpose of with a nonarbitrary judg- exercise of 338, at 73 at 686. tion.” 345 U.S. evaluating grievances. ment in appli- the Huffman applied court recently This cation of the Vaca standard in the context case from a principles arising to a similar grievance procedures of does not provide union’s of modified negotiation seniority range for union discretion within “a wide of stating “lawfully the union rights, reasonableness” —in contrast to the collec- majority could follow the dictates of the if Huffman. bargaining tive standard good determined in faith that the deci- they differences be emphasize We sion reflected a resolution of cоn- proper tween union conduct in representing di Alvey v. flicting legitimate but interests.” employees in verse collective Co., General Electric 1279, 622 F.2d 1289 and union conduct in representing employ Rupe Spector accord v. (7th Cir.1980); Freight Inc., having grievances, ees individual Systems, because 685 claims Cir.1982). appear here to involve ac tivities of Union both in ostensibly ne hand, assessing On the other when a un gotiating non-mandatory interpretation in processing ion’s conduct apprentice ratio in processing Court, Supreme using while also a “good by Thus, filed plaintiffs Schultz. standard, purported faith” has not grant alia, inter assert, that the by agree range the union “a wide of reasonableness.” ing with Owens that the one-to-eight ratio Sipes, in Vaca v. Thus, 171, 190, 386 U.S. 87 to, need not be strictly adhered breached its 903, 916-917, 17 L.Ed.2d 842 (1967), representation. of fair duty But we do not the Court stated that a union’s processing believe that a jury could find that the Un grievance (more of a precisely, the refusal ion here “complete good lacked faith and to take a аrbitration) honesty purpose in the exercise of its violate the duty representation fair if the discretion,” Huffman, U.S. union’s conduct towards the “is employee 686, by arriving S.Ct. at at this interpreta arbitrary, discriminatory, or in bad faith.” Owens, tion Accord though even the written Inc., Hines v. Anchor Motor Freight, 554, 566-69, language changed. contract was not Both U.S. 96 S.Ct. 1057- and the Union were aware of the Humphrey v. (1976); L.Ed.2d 231 Moore, 335, 350, compelling arguments economic for inter 363, 372, U.S. preting apprentice 11 L.Ed.2d ratio as non-manda Rupe Spector (1964); Inc., Freight Systems, tory. The Union was also aware that F.2d 691-92 (7th Cir.1982); Lonza, Inc., Hoffman had, same similar language or more than (7th Cir.1981) contracts, F.2d J., interpreted 750 other been to be (Cudahy, concurring). But the not, non-mandatory; Court did interpretation ar ticulating this standard context, in this unreas language patently fo the contract is not cus on the inherent difficulties of were satisfying though plaintiffs onable.13 Even argue Apprenticeship changes Plaintiffs that the unreasonableness [certain interpretation (which agreed negotiations the Union’s of the contract lan- contract guage here)].” is evinced our decision in Schultz I 560 F.2d at 856 are not discussed where, according plaintiffs, (“[W]e (emphasis supplied); the court at 854 have inter- see id. preted language “mandatory.” apprenticeship program this ratio to be demonstrated holding mandatory [contract].”) But misstate our under Schultz I. holding opinion The limited of that could was that the issue in Schultz I was whether program bargaining agreement any rights apprenticeship 1974 “collective estab- assert mandatory program lishes state a claim for breach of for which could voluntary by repre- that was not made fair the Standards and breach of the

516 reasonableness” to range a “wide of agreed the cord

disadvantaged by interpretation statutory its obli- Union, carrying in out the was entitled to the union the Union by agent is to pu- bargaining exclusive against gation the plaintiffs’ balance interests the that Union anything, we believe preserving its in mean tative interest of members have breached its be found to entity.14 a here cannot emplоyer their as viable economic negotiating in representation fair of duty presented here no evidence to Plaintiffs Rupe v. agreement with Owens. this the to allow show that Union’s decision Inc., 679 F.2d 685 Freight Spector Systems, in flexibility appointing employees Cir.1982). anything there inher- (7th Nor is apprenticeship program was motivat- the Union’s reach- unacceptable about ently hos- by anything remotely ed even akin to Owens about the understanding with ing an bad faith or arbitrariness. Cf. Baker tility, provi- of apprenticeship the interpretation v. Newspaper Graphic Communications by a sion, reflected formal which was not (D.C.Cir.1980) Local 628 F.2d 156 Under agreement. in the written change (union breach duty represen- did not of fair extrinsic unwrit- circumstances such some lists, agreeing seniority tation to dovetail by serious is- might raise understanding ten disadvantaged even though dovetailing such sues, do circum- perceive but we employees, some when union was concerned v. Pa- here. Anderson United stances Cf. preserving jobs). with tried Union in Union, 641 F.2d International perworkеrs success, bargain without an inter- duty breached of (8th Cir.1981) (union pretation with Owens which have knowing it made representation fair when plaintiffs; been favorable but the ratification of misrepresentation to induce any absence of evidence to indicate bad bargaining agreement).15 collective part, arbitrariness faith or on the Union’s Further, the negotiating respect we cannot fault Union’s to the second claim, we decisions. If the Court’s admonition to ae- of the fair aspect representation Co., question Alvey F.2d We that affirma- v. General Elec. sentation. answered Cir.1980) Peabody tively (quoting because we was re- Tedford found that Owens by bargaining agreement Co., (5th Cir.1976); quired the collective Coal program providing Co., a to establish such thus Elec. Williams Western accord plaintiffs F.Supp. (N.D.Ill.1981). with a basis in the contract for their And, that claim because of the Owens breached the contract. argue nature the mandatory pro- 15. Plaintiffs that the secret of nature of the agreement and the gram, plaintiffs between Owens Union could that also state a claim representation faith conduct. But duty evidence of the Union’s bad Union breached its fair alleged plaintiffs’ only protecting rights their evidence of failure in not contract program. several We are now with a disclose are assertions faced different determining agree- question: the oral on the merits whether that Hemken never mentioned interpretation by regarding the language ‍‌​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​​‌​​​​​‌​​‌​‍creating Union of the clause at the ment program actually meeting held December contract ratification duty representa- Although the Union’s fair breached tion. testified that he dis- 1971. Hemken interpretation the oral member- ver- closed ship, purposes affirming a directed accept must assertions certain major goal duty representa- dict we 14. The of fair any event, contrary. plaintiffs to the identify protect ex- tion is to individual do not in our view demonstrate bad assertions faith regarding pectations mining possible as far as without under- agreement Union’s the Union since the Where the indi- collective interests. apprentice- interpretation clash, group and collective interests vidual crystal ship em- yield clause was made clear all must the latter. When the former including plaintiffs, during ployees, bargaining agreements exe- are collective grievance meetings. monthly cuted, may many provisions and 1973 at there which Moreover, plaintiffs’ pressed the Union employees to believe lead individual apprentices but, for more the 1974 specified claims contract in the final entitled to analysis, benefits evincing good negotiations, again group the collective interests must faith effort to through demands paramount. achieve remain policy requires The nature labor process. preserv- the collective an between election distinguishable ing group through before us is thus from the case interests democratic present misrepresentation processes adopting in An- restraints affirmative derson, external minority. F.2d protect believe that is sufficient evi- (cid:127)cаuse there do not there was no evidence from which in this case could jury dence which jury could find either Owens breached determine that the breached its the collective bargaining agreement by not representation processing fair maintaining one-to-eight ratio or that grievance. fully The Union was Schultz’s damage suffered due to the al- aware of the basis for Schultz’s leged breach of Although contract. defend- this during negotiat- since issue had arisen ants have argued support in of the district ing grievance sessions and meet- monthly court’s grounds, decision on these we need Union, given ings. Although the its 1971 arguments not consider those here in the Owens, understanding with could probably absence of substantial evidence of a breach have, without its duty, rejected breach of of the duty representation. of fair grievance outright, pressed the the Union finding of such a breach is an essential claim, with taking ahead it Schultz’s element of plaintiffs’ 301(a) section suit through grievance all stages proce- of the against both the preceding dure Owens. Rupe arbitration. Neither nor any Schultz other have assert- v. Spector Inc., Freight Systems, Hemken, grievance ed that who the handled (7th Cir.1982); see Vaca Sipes, Union, the for hostile personally 386 U.S. L.Ed.2d 842 or them that he failed act as a diligent (1967). dealing advocate for their cause when with The order of the district court directing on the merits of Schultz’s claim. verdicts in favor of the Union and Owens is When Hemken request determined affirmed. arbitration, he wrote letter to a explaining why he the thought Affirmed. was without merit.16 These respect griev- actions with COFFEY, Judge, Circuit concurring.

ance do not constitute a breach of the duty I in the result reached by the representation. of fair concur There is in nothing faith, majority III, infra, in evidence to indicate Part that there bad arbitrari- has or part ness discrimination on of the no breach duty been of fair represen- To Union. contrary, evidence un- tation, compelled but I am to write sepa- ambiguously suggests that Schultz’s claim rately because I majority feel the has misin- pressed was considered before terpreted the basic' federal labor policy Owens and ultimately after a dropped care- mandating that the manner in which dis- ful assessment of its merits. A jury, our gruntled aggrieved employees file griev- view, is left with no other conclusion than right ances and indeed their to file griev- a Union did not its duty breach must initially ance be determined resort representation fair in processing Schultz’s their labor As noted by contract. grievance. Spector Rupe Freight court, herein, every plaintiff district except Inc., Systems, 693-94 (7th F.2d Schultz, grievances “failed to file or formal Cir.1982); Stores, Inc., cf. Cote v. Eagle against claims pursuant Owens-Illinois F.2d 32 Cir.1982)(per curiam) (grant- and arbitration machinery of ing summary judgment to union and em- the labor It is a contract.” basic tenet in duty on ployer representation ques- fair all almost labor contracts that individual tion).

employees wishing to assert a contract IV. CONCLUSION initially must make use of those etc.) procedures (arbitration, provided The district court for in also found that directed verdicts were proper defendants be- labor parties. contract between the Re- previously ap- given by 16. We have indicated letter Hemken his to Schultz—were parent accepting proper economic ramifications a considerations for Union and their mandatory interpretation consideration was consistent this case with provisions representation. of the contract —the same reasons its of fair ability to estab- Maddox, ployer and union public Steel v. U.S. 614, 13 lish and exclusive method for L.Ed.2d 580 While an uniform griev- employee con majority opinion agrees orderly basic settlement Steel, Republic grievance procedure and indeed I feel If a cannot cept cites ances. exclusive, language extensive it loses much its quotation more be made clearly em Republic Steel will more as a method of settlement. A desirability strong how demonstrate ‘wouldinev- phatically creating rule such situation is to firmly policy promote entrenched the disruptive influence exert itably grievance pro initial redress to contractual negotiation both the and administration ” allowing parties proceed cedures before agreements.’ of collective in the federal courts. 652-53, Steel, Republic 379 U.S. at general “As a rule in cases to which omitted, (citations and footnotes policy federal law federal labor applies, supplied). some emphasis employees that wish- requires individual strong statement of federal labor This must ing grievances to assert contract who policy employees mandates that are use contract attempt grievance employer actions of their aggrieved by the procedure agreed upon by employer and language and the must first look to follow as the the union mode of redress. If contract, the “ex- in their labor contained press only perfuncto- union refuses to for orderly clusive method settlement of claim, rily presses individual’s differ- the. after grievances.” only It is employee forms may ences arise as to the of redress the “exclusive method” fails that federal then available. But unless the contract to grievant. courts are available the Courts otherwise, there can be no doubt provides must permit employees ignore to the must afford the union employee mutually agreed upon for han- procedures on opportunity the to act his behalf. dling by filing suit in the federal grievances approved has Congress expressly contract courts, increasing the on our thus burden grievance procedures preferred as Griev- system. overcrowded court already settling disputes method for and stabiliz- arbitration, procedures, including ance were plant. the ing the ‘common law’ of Un- agreed management labor upon by and to prosecuting employee ion interest expense avoid litigation the time and and comple- is grievances activity clear. Such further to avoid industrial strife. United ments the union’s status as exclusive bar- States America v. Warrior Steelworkers gaining representative by permitting it to Co., Navigation & Gulf 363 U.S. participate continuing in the ad- activеly 4 L.Ed.2d 1409 Once we addition, ministration of the contract. In workers, allow the majority suggests, as to handling conscientious contractually agreed upon circumvent these will the prestige claims enhance union’s invite procedures, we industrial strife and interests, employees. Employer validity bar- undermine the of the collective part, by limiting their served the are gaining process. to aggrieved choice of remedies available said, dispute The in the re

employees. And it cannot be in the instant situation, normal that contract grievance quires that be filed within inadequate protect giving procedures working days are three the event rise aggrieved employee plaintiffs (with interests of until The an the claim. herein employee attempted implement Schultz) has not even at exception did found them procedures and so. disre tempt grievance, completely to file a three-day time limit set forth garding the an contrary permit A rule which ignores majority labor contract. The employee completely individual side- must construe the con in fa- fact step grievance procedures available “[w]e written, tract rather than make a new it. vor of a has little commend lawsuit parties,” contract for the Oddie v. Ross cutting In addition to across the interests Co., mentioned, em- Tool already deprive it would Gear and egregious conduct existing case In contrast expands upon Cir.1962), Glover, there employer and the the Union Francis- law, v. St. Louis-San citing Glover in the record in the instant case nothing is R.R., 393 U.S. co demonstrates that which an effort to avoid the (1969),in L.Ed.2d 519 were and Owens-Illinois representatives steps follow the set failure to “acting up in concert” or “set schemes Justice the contract. Glover forth in plaintiffs here- deprive contrivances” to exceptions exist to that certain Black noted legally which enti- rights in of of intraunion of exhaustion requirement is true that the Union and tled. While it one ex- notes that majority remedies. in- agreed upon an employer mutually pursue effort to where “a formal ception is the contract which is ad- terpretation of remedies would administrative contract or this alone plaintiffs’ position, verse to the 331, 89 futile.” Id. at absolutely conclusion justify majority’s does not However, majority’s analysis rejected, that “once Schultz’s quotation re- too short. The stops Glover for the other it would be futile is followed majority upon by lied grievances.” to have filed than Schultz circumstanc- statement “[u ]nder and the Union employer conduct of the es, exhaust contractual rem- attempt rise to the level of the herein does not Corp. edies, [Republic under Steel required Glover, mere and therefore the parties by petition- satisfied Maddox], easily assumption part on the complaints company repeated ers’ effectively would not act that the Union officials, consuming no for- and time union to dis- grievances is insufficient upon their of them.” Id. malities should be demanded of the con- filing requirements regard involved (Some emphasis supplied). Glover Republic tract and Steel. five white eight black and рetition by majority’s issue with the Finally, I take men, employees all of the St. Louis-San be equi- the defendants should position that repair to and employed Francisco R.R. Co. raising from the defenses tably estopped The freight and cars. passenger maintain timely griev- failure file a to alleged railroad/employ- that the exhaust intraunion remedies. ance and/or its black workers in promote er refused to that even if the Initially, it must be noted understanding be- accordance with a tacit be estoppel were to equitable doctrine of In an employer tween the and the Union. which I do any plaintiffs, to of the available plaintiffs alleged complaint, amended is, doctrine would that it that not concede complained both repeatedly that had This is so available to only Schultz. rep- of the Union and to representatives with action or inaction because the Union’s company concerning resentatives the timeliness of ‍‌​‌​‌​​‌‌‌​​​‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​​‌​​​​​‌​​‌​‍objecting respect agree- bargaining violation of the collective reasonably induce filing only could Schultz’s responded: The Court ment. Glover part action or inaction on Schultz. allegations are “[t]he one, individual grievance was an Schultz’s have representatives employees of the car such, part any action on with the railroad acting been concert regard to this defendants with set schemes and contri- employer up Thus, I cannot under- only. affects Schultz Negroes promotion bar from vances to that “the majority’s position stand true, that is because of race. If wholly laid for the could have been groundwork exhaust petitioners insistence and the claim timely grievance, of a filing the union and remedies administered dis- preserved.” could thus have been prolong only the railroad would serve trict court noted Schultz’s to which these deprivation rights which while the events was filed in according allegations to their petitioners occurred rise to the gave entitled.” justly legally 1974. I am through of 1971 period “groundwork what Glover, at 552 to understand unable U.S. of a filing for the have been laid could (emphasis supplied). majority as- grievance” which timely (or any of have allowed Schultz

serts would file within the grievances plaintiffs) had limit even if the Union

three-day time timeliness

initially contested the filing deadline grievance.

Schultz’s years two before some to five passed

had part on the action or inaction

there was the timeliness with respect

of the Union Therefore, since our grievance.

of Schultz’s the four- reading to a

review is limited and we “must of the labor contract

corners written rather than

construe the contract as parties,”

make a new contract for change be no

since there could reliance re-

position by any object to the Union’s failure

spect I would

timeliness of Schultz’s dis- district on the issues

affirm the court

cussed herein. GRISBAUM, Plaintiff-Appellee,

Thomas MEAT CUTTERS &

AMALGAMATED UNION, WORKERS

TANNERY and Third-

LOCAL NO. Defendant Plaintiff,

Party CORPORATION, Defendant

The KOHL Third-Party Defendant-Appellant.

No. 82-1916. Appeals,

United States Court

Seventh Circuit.

Argued Oct. 23, 1982.

Decided Dec.

Case Details

Case Name: John Schultz v. Owens-Illinois Incorporated and District No. 9, International Association of MacHinists and Aerospace Workers

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 22, 1982

Citation: 696 F.2d 505

Docket Number: 81-1104

Court Abbreviation: 7th Cir.