*1 management. specialized presence the re- this form of To establish although making court, Indeed, the premises, the trus- equity quired on the ousting replace- it a condition of order testimony tee relies sugges- possession made- the bank $4,000,000, that “the ment cost agent of the bank $3,500,000. tion that the rental appraisal amounts net long keeps retained “as the occu- equity debtor Thus, there is highest pancy possible rate at level.” to sustain able the bank even $3,480,025.50.” amount claim hold We trustee failed contends Specifically, the trustee satisfying to meet his burden equity of possession of a book value Flying articulated three basic factors mil- $19,974.50 one-half three and Airways W. we believe control which pos- to take stake lion dollar entitles so, being This we are con this case. pos- mortgagee in of a in favor session conclude that strained to re- interest financial session whose issuing turn of discretion abuse of the value. flected balance mortgagee deprived оver which order possession. persuaded trustee We are not Accordingly, order demonstrating turnover suffi- his burdens of met May 2,1972, will be vacated. justify equity the turnover. cient observed, Moreover, heretofore accompanied the sheet balance which reorganization petition debtor’s $3,313,513.00 and
shows total assets of long term liabilities
current
$3,519,859.00.
scarcely
said
can
It
figures
disclosed
debtor’s own
meaningful equity.
presence
of a
Raymond DAY, Plaintiff-Appellant,
remaining
We now turn to the
factor
v.
which should have
considered
been
AUTOMOBILE,
UNITED
AEROSPACE
relationship
the district court —the
AND
IMPLEMENT
AGRICULTURAL
possession
AMERICA,
trustee’s
trustee’s
WORKERS OF
LOCAL
Company,
reorganization
UAW,
OF
Motor
Implicit
and Ford
in this
efforts.
Defendants-Appellees.
recognition
consideration is a
of the
principle
depriving
that “action
mort-
No. 71-1547.
gagee
possession
and income of
Appeals,
States
United
Court
property
pur-
has obtained
Circuit.
Sixth
bargain
bankruptcy
suant
to his
July 27, 1972.
.
ex-
drastic
...
[a]
Rehearing Denied Oct.
1972.
pedient.
.
.
.”
In re Riker Dela-
Corp., supra,
ware
Also under the circumstances case, finding this would be a management possesses skills,
trustee
abilities, singular expertise justify ousting mortgagee who, tak- ing possession, had been successful
increasing the of rented units numbers process placat-
and was well into the complaints tenants’ their which had
genesis possession. under the debtor’s finding
The district court made as to particular qualifications trus- specific responsibilities
tee for the
«5 *3 Mich., Detroit, Jackson, D. James appellant. Detroit, Stanley Lubin, Fabre,
Edwin Mich., Joseph O’Reilly, A. James R. Jack- Miller, son, Dearborn, Mich., A. Bruce Maurer, Zwerdling, Miller, De- Klimist & troit, Mich., appellees. Judge, PHILLIPS,
Before
Chief
PECK,
Judge,
Circuit
and McALLIS-
Judge.
TER,
Circuit
Senior
Judge.
McALLISTER, Senior Circuit
brought
against
Plaintiff
action
Company, a
cor-
Ford Motor
Delaware
poration,
em-
for reinstatement as an
damages
by him
ployee, and for
suffered
wrongful
result of
a Ford’s
86
brought
complaint
action
He also
of him.
also all
shown
but
facts
Union,
appellee
depositions
which he was a mem-
concern-
affidavits
ber,
duty
dispute.”
for breach
owed to him
which there can
Railway Express
representation
Agency,
of fair
manner
Harris v.
regarding
(C.A.10).
grievance,
the dis- F.2d
In
v.
Donahuе War-
Pictures,
Appellee
(C.A.10),
ner Bros.
Ford Mo-
appellant’s
govern
complaint. The rule
at
ture of the case
sum-
the time the
ing
stated in
this case was
an earlier mary judgment
entered.” A
sum-
adjudication to
effect
that where a mary judgment movant admitted all facts
judg
summary
defendant moved for a
pleaded
plain-
that had been well
ment,
allegations
accept
the court must
Airlines, Inc.,
tiff. Gore v. Northeast
complaint
City
as
Furton v.
true.
(C.A.2).
murder his wife no- Company]: Company for the Ford “[Counsel tified the Ford Motor involuntary absence, his detention, representative In fact Yes. union his and signed form, disciplinary Appel- action of his intent return to work. discharging January January [appellant] on on lant was released bond on 11, 1969, 16, 1969.” once went the Ford and at by plant accompanied his and wife Obviously, Ford Motor counsel for the bargaining plant his Union committee- arguing Company was that notice Daniel, man, spoke Mr. and with L.L. sent, representative because Union Echols, rep- Dick labor Mr. relations signed disciplinary And the Ford resentative of Motor if the went on state that even counsel required appellant under- Echols allegation that had been made go physical examination, and after- discharged no- in without absentia rein- ward told him that would be tice, of the would not a violation that guilty stated was found to not bargaining agreement, since collective charge. of the murder bargaining agreement collective 1969, that, days later, 16, January in the event Five states on during waiting employee, period appellant notice action absent given to be of the the action need for exoneration court charge state murder, “disciplinary place In no does counsel dis- Union. discharge giv- charge” signed by any notice of the Mr. Echols and that grossly appellant. unfair “dis- en It seems record was marked employee, charged.” in unjust that the and that a It is standing Union, rely good not and upon, and al- with the any deficiency though they guilty or misconduct assert summarily “unsatisfactory Company, could be toward attendance” employment awaiting discharged and his trial the crim- while he was rights, seniority pension all inal case. have up- fringe appellant he would be told reinstated benefits rights, and insurance exoneration of the murder
abolished, notice to on Daniel, who was argu appellant in his Counsel committeeman, bargaining still Union Court, District ment before 9, 1970, February file a us, argument sub brief before claiming “unjust to be an problems that, various due mits penalty.” committee- As the large com of a scattered units man, signed Daniel Agreements” and “Letters pany, “Local form, setting appellant could forth that cope Understanding” are needed to December not for work between unique situations problems and leave, 1968, day 13, of his sick the last Unit; the “Let that found in the local 16, day January 1969, re- of his negotiated Understanding” were ters of bond, hе had the reason that lease ap Union to the Local of police by the on a been detained supplemental belonged, pellant are murder; appellant had that been Agree to, the Main and in addition rein- he would the Ford Internation the U.A.W. ment reached employment found if he stated were Company; Motor al and the Ford that, charge; guilty the murder not designated the “Wixom such letters appellant reported for work Understanding” named after Letters of February a few plant Wixom told, guilty, found not had been employed; where date, by relations on that labor Ford’s Understanding” pro “Wixom Letters representative, had been dis- repre hearing with a Union vide for charged, no more deny present. Ford does sentative Mr. Daniel further set work for him. this, Let the “Wixom but submits appellant had forth Understanding” not made were ters of protec- his life and defense of acted case; part in this were of the record family, tion be- stated allegation appellant; mentiоned was also who was killed cause the man *6 That be considered. hence cannot Company, employee of the Ford Motor arguments consider true. We cannot felt that “Letters;” but, re on a based on such appellant all con- “the best for allega trial, may appellant amend his grievance The concluded: cerned.” including provisions of the tions day sent.” was no notice “There Understanding” that “Wixom Letters of 9, 1970, who, February Daniel, Mr. provide hearing of dis for a in case stating appellant grievance that filed charge. five-day notice be- had not received Relying solely on Echols’ state- Mr. bargaining discharge, actually, as fore ment would be made that reinstatement committeeman, dis- had of the notice exonerated, appellant con- year appellant before, by the tinued to wait exoneration signed January 16, he had since granted February court—which was committee- as the name to 5, 1970. thereof, receiving but notification mаn appellant dis- had been did not tell he immediately appellant returned Almost although appellant re- charged, knew employment Ford office of the get him, in touch could and he lied Motor re- asked that instantly. Appel- appellant almost job. instated in He was then denied grievance matter of lant left reemployment ground on the that had Daniel, had who of Mr. in the hands discharged. got been He in touch then signed for him. it it filed and Daniel, with Mr. L. Union bar- L. grievance 6, 1970, gaining agent accompanied March On who had Echols, “untimely” by year Mr. was denied Mr. Echols’ more than a as office representative relations labor on the Mr. Echols same occasion when Daniel, him he would be Mr. un- of Ford had told considered who just, soon as he exonerated entitled to reinstated as that charge. pay, reinstatement because of murder When with back later, Company’s Mr. called him months Dan- statement that several reported iel that finished” and him when he was exonerated he “was rеinstate gone far he could.” of murder are not told “that he We had as - grievance Union Mr. the record whether the three had stage” committeemen, for him a “second who Daniel file were members grievance, and the contract with Union own who withdrew Local and provides repre- appellant’s discharge, meet- ever had a may proceed beyond ing; they sentative a “second or whether even considered stage” grounds grievance. for reinstatement set forth grievance Daniel in the filed Company, Ford Motor in its brief him, grounds or knew those were. what Court, in grievance plaintiff’s this “The declares: power committee- Whatever the of such was considered the Com- griev- employee’s men to withdraw an pany untimely and denied as on March they act, ance, re- are bound to in such representative 1970. The Union did not gard, justly equitably toward appeal disposition.” choose to It lant. until Since was not discovered now turns that was not the case this argument after of the Court case representative all. The Union had that the three Union committeemen had appeal choice disposi- whatever to withdrawn after wholly inexplicable A tion. circumstance denial, notifying him, appears now argument revealed until —not thought and claimed Daniel was Court, when, before this du- bious about peared ap- blameworthy certain appealing notations in not de- grievance filed, on the the Court grievance. Daniel, nial of the caused Clerk inquire par- from the stated, never meaning ties as to the of the notations. three committeemen with- reply inquiry, to this the Court learn- grievance. only reply drawn His signed ed that Mr. Echols his name to appellant’s inquiry griev- as to how the the ly.” of the denial as “untime- proceeding, every- ance was appeared There on the thing was done that could be done ¡liso letters, “DDC,” the written that he was “finished.” word, Court, “Withdrawn.” The in an- inquiry, swer to was informed From the terms “DDC,” letters, counsel that the agreement, plain *7 to see is plant initials the three Union commit- discharge types permitted are two to teemen; they agreement were in disciplinary One dis- is a appellant’s grievance; denial of charge, IV, 3; Article the other Section and that the three Union committeemen discharge failing report is a for to aft- thereupon griev- withdrew employee er an has been absent from ance from further consideration without satisfactory excuse, work without Article any appellant. notification to There is VIII, B, dispute Appendix Section of the Col- as these to facts. Such with- drawal posited Bargaining Agreement. a is lective VII, Article Agree- 3(d), Section of the discharge disciplinary In a for unau- ments between and the Un- pro- employee thorized absence, an must ion, which states: “The Unit Commit- through procedure. ceed tee power shall have to withdraw a Sec- * * procedure, Under Commit- Stage the Unit ond Up Grievance un- power til tee the three to with- Union has committeemen with- appellant’s grievance, drew second-stage grievance. draw a plant committeeman, filed behalf Mr. Daniel second-stage griev- Legitimate em appellant was a absences an ployee, VII, provides: subject which are not Section to dis
ance. Article bargain provided for in the “Disciplinary Cases ing contract: (a) Taken. of Action Notice given employe disci- is a an When “ARTICLE X off, lay discharge, or a plinary or Reporting “Section 7. Absences warning, reprimand which is system “A shall be established record, personnel his affixed to verify permit employe will to Committeeman, if availa- District fact notified has ble, not, Unit one Com- or inability report telephone of his mitteemen, promptly will notified for work.” writing taken. in action inability report disciplinary Such an absence action is taken When employe absent, for work dis- could not be the basis who is of a ciplinary be noti- wiU the Unit Committee (Emphasis supplied.) provided fied." It further in collеctive bargaining agreement in: given discipli nary discharge of “Unauthorized Ab “ARTICLE VIII discharge sence.” A ais Seniority “Section Loss 5. chastise, discipline pun “Seniority shall be broken ish; improve by penal methods, following reasons: punishment. penalty chastisement or A nary discharge reason, “unauthorized absence.” absence stated that International charge.” disciplinary discharge. ization is penal retribution. of an It not, Dictionary. employee in this case “Penalty” itself, See Webster’s New emphasized without author basis gave discipli It also for a “dis “3. [*] him, tice five give “If the (Failure (cid:127)* (5) either satisfactory employe report unless calendar comply Report) has been sent it is does days with either reason for for work or not, possible within no- provid- requirements; “disciplinary” these A to be (10) understood, light at least ten calendar ed of the definition day elapsed last mentioned, have since par- above common lance, worked. because some- thing blameworthy, because some reg- shall be sent “Such notice fault, deficiency, lack, some some some employe’s mail to last istered inadequacy, disobedience, some some mis- according to the known address conduct, per- some failure conduct or except Company’s records, and, part formance cases recall, notice shall discharged. disciplinary discharge A substantially in the form set part unauthorized absence of an B, Appendix forth attached.” irregular would result from at- (Emphasis supplied.) tendance on work days, or absence *8 for period' any of days, work or from dere- B “APPENDIX liction, because of unauthorized NOTICE FIVE-DAY performance duties. of Wherever discharge” “disciplinary term it has been is “Our show records used, days you whether since based on conduct ab- five or more calendar or sence, not, you implies fault, 5 If do within or dereliction worked. last date, duty. days Where an from the not fault above at calendar or duty, may Employment repоrt derelict in Of- to the not be disci- either plined. give satisfactory or a for work fice
91 your for to the Em- ance contract, section reason absence with this given writing by ployment dis- tele- could be a Office or discharge your by phone, employment ciplinary will termi- the Ford Com- be your seniority pany? report you inability to work nated and will lose His for (unless you impossible com- or admitted. His notification of such * * *” above). ply Company is fact to the Ford By being with the admitted. by police until he detained VIII, 29(b), pro- Section ARTICLE bail, appellant not was released had of absence as follows: vides leaves anything done to the Ford Days “Not Over 30 was not or serv- He derelict his duties granted may be of absence “Leave Company, not ices to the Ford and had personal period for a reasons for any committed called for dis- act that upon thirty (30) days to exceed cipline punishment penal or retribu- ap- employe application Company Apparently, tion. Ford proval of Foreman. not, time, did subject at consider he Days “(c) up to 120 Over discharge. disciplinary to a granted may bail, be When he was released about of absence “Leave period arrest, a for month after he immedi- personal reasons a for days upon ately Company ninety (90) went to the Ford not to exceed ap- bargaining repre- employe and his wife and sentative, application his Union Management Daniel, reported proval for being employe required im- are not After work. take services physical examination, passed, mediately required there are which he capa- Echols, by plant employes then told Mr. labor available * * * representative doing relations work. ble of granted Company, may be would reinstated as that he be Leave of absence foregoing soon as he was mur- conditions exonerated from the under days charge exceeding ninety (90) pending. der Nothing period still days if re- was mеntioned Echols exceed but quired traveling discharge purpose about a or a dis- * * * later, foreign country. Mr. Echols But four signed “disciplinary” discharge with- “(d) Extension notifying appellant. out It should be may be extended “Leaves absence discharge emphasized Employ- upon approval employeethat made without notice can he sup- (Emphasis Office.” ment “disciplinary” discharge. to him a plied.) nothing a dis- Appellant’s was not had done discipline. called had done noth ciplinary He While day bring any kind down himself sick leave—the last still absent on retribution; penal but de- leave—he was arrested his sick charge explicitly “penalty,” police on a stated Detroit tained although Appellant’s immediate- “unauthorized days wife of murder. absence”— four tele- before the was filed ly notified the Ford Echols, appellant, phone inability for work without notice signed police. discharge, who assured detained because he was reemployed compliance appellant would soon phoned the She X, 7, of Collec- as was exonerated of the criminal Section with Article Agreement Bargaining providing Because of made tive by telephone representation made labor re for such notification inability to re- official lations exonerated, reemployed Ford’s cus- port soon as was in for work while he *9 discharge How, compli- police. is tody invalid. the Ford Com it does defense of the Ford maintains that not give any have to notice pany when to the discharges counsel, him; his internal it proceedings the Union- to exhaust failed Court, grievance procedures, and that Company District the bring five-day precedent the no to contended that the written condition this is a by registered applies mail ing claims an Ford tice employee of his suit. discharge report, given disciplinary to fails when a was bargaining lay-off Company a that, tells the em the collective the under ployees question report agreement, or set in order to back to work and he discharge, respond. must does not it be reversed We do not read aside regis grievance procedure requirement by through stated of that notice question Company from tered mail limited in the contract. Aside discharge discipli recalling employees laid have been of nary, who whether bargaining agree fact, says rule no In that such the collective off. by registered Company provides tice shall sent mail to while ment “except employees discharge employee cause, report, it may for who fail to an any wrongfully unjustly. event, A cases it or recall.” cannot not act will discharge discharged upon employee’s fil a insist a for means cause good appear a within three it for cause. Nowhere does having discharge, penalty “good such a it or cause” was relied that “cause” untimely discharge appellant. dismissed as day rule, the three- upon under Nowhere gave any it him no notice appear when does it there were discharge, grounds him of con discipli or assured a which to base discharge. bargaining employment, ex tinued nary Under may given To contract, employee onerated of the criminal a an procedure disciplinary insist on such a rule and without notice tyrannical inequitable and con be trary rights employee’s to an a basic being. workman and as a human nothing Appellant had done for, disciplined punished compelled assume the we are Since is, “penalty” of This fact appellant’s allegations all of truth of unconsciously emphasized by perhaps, fact, plus the inferences reasonable Company counsel for Ford Motor other which flow from those facts and pointedly his brief in Court when he facts, admitted it is our view that says that “in the event of lant, us, entitled facts before on the employee, action an absent notice report a for be sent to notice to work to given only of the actiоn need be registered to him Calling ordinary discharge Union.” an mail, failing Company’s and that the “disciplinary” discharge it does make in an invalid send such notice resulted discharge. disciplinary discharge. This not a the view We also of disciplinary discharge and, on this rec bargaining provided since the contract ord, respon both Ford and Union are system whereby per- wrongful discharge sible for the and the inability verify mitted fact of process griev failure of the Union to t'he by telephone, Com- for work appellant, beyond ance filed justified discharging, pany denial. notice, un- who discharged wrongfully noti- so able to return who to.work five-day since received fied Since the by registered during notice mail that his did not em- ployment police time would be terminated he was detained unless reported work, month, period evident accordance with APPENDIX B gaining Agreement. section Bar- understood this Collective so of contract.
93 so, bail, nor could well Echols Moreover, when it do since Mr. after rеlease Rela- official the Ford Labor appellant Union with his Department appellant tions to whom agent relations de- appeared the labor Daniel, bargaining agent, asking Ford, the Union reinstate- partment of reported Echols, in was releas- as soon as told and was ment charge bail; first, ed it who di- department, to take Echols afterward, and, physical examination, rected exam- physical to have ination; who, afterward, reinstated he would informed that be reemployed soon as he was the criminal when exonerated of exonerated; Company estopped who filed the from Ford discharge, signing notice, him, prior discharging it as Labor Rela- to without Representative; tions and who later his exoneration. signed griev- denial of may estopped employer An represented spoke ance. Mr. Echols employee in a col a defense that from all matters af- bargaining agreement not ex has lective appellant in fected case. In remedies. hausted administrative his bargaining repre- When the Union Atchison, Topeka F. R. S.& Stroman v. filed a sentative grievance instant case Co., Cal.App.2d P.2d 326 (after on behalf of employer es- the topped held that an court finding he was guilty), of not exonerated urging part from failure on representative set employee under collective bar of an support to forth facts the claim agreement, gaining as a defense wrongful discharge, appellant received wrongful discharge. ease, the cited grievance notice of the two denial of superintendent su clerk to the and the ground that it was months later on the untimely. Then, repre perintendent of railroad made rep- before the Union discharged employee as to a sentations grievance process resentative could whom of the railroad to the official further, it from consid- was withdrawn protest grievances. employees their must eration officiаls. Instead proper was not the official Such official protecting appellant’s rights by process- grievances presented whom were grievance further, de- bargaining agreement, under the and the rights stroyed to a all fur- estopped from railroad was held to be hearing ther without notice to urging brought as a defense to an action discharged employee by the that she had inequi- Appellant contends that it was grievance present failed to her to the discharge, no- Ford to table proper official. The court said: tice, good standing proper interpretation of “Under the Union, had and the and who Bargaining Agreement the Collective years’ seniority, on the more than three fundamental rules of fair ground certain when play. company under While inability informed duty speak speak, when did no through from and Ford insisted his absence agents, responsible it was work until he was exonerated duty speak under a the truth and con- criminal further plaintiff her to mislead the dаm- not age.” inequitable tends was and unfair deny employee to for “un- just discharge” ground on the held that court in such a case untimely because the em- company estopped urging the ployee within filed his defense failed to ex- was, while he three haust her administrative remedies. keeping promise rein- with Ford’s says employment Counsel the Union that Mr. him in state exonerated, awaiting agent; Echols was not its authorized exoneration but such claim, court, found later does make this in which was *11 was, Echols, say guilty agree, It to let’s we that purpose argument, course, impossible file a for to for the he that unjust alleged timely made the statement that he is * * * discharge, when to made. within three have relying of it and was no notice he had “THE COURT: That is until ‘Wait promise Company’s reinstate to on you have been exonerated and-—’ “COUNSEL FOR THE UNION: right. Here it is to be noted that leaves That is assume made Let’s he may statement, just purpose be of absence extended that ” * * * Office, approval Employment argument. ac VIII, 29(d) cording Article to Section appellant’s pleadings out in This set was collective contract. and, summary on the Union’s motion When, reported mentioned, appellant as judgment proceeding, and in this it must work, for bond, had been on after he released accepted be as a fact. giv murder he “COUNSEL FOR THE UNION: Ford, physical en examination a Now, put let’s it in the context of told that he would be reinstated say procedure and let’s that time, soon as exonerated. At that he Daniels, [the committeeman] discharged; had not been all, for no hostile comes to reasons Company’s notification erroneously the conclusion that [Ech- employ that he would be reinstated in did make statement or that ols] time, ment fixed at this future as of the possible prove is not he made exoneration, date of his on the record statement, grievant’s or that the us, may before considered from bad, character I is so because under- equitable standpoint, equivalent to be shooting wp stand he has a habit of an extension leave people something, I don’t ex- know appel as far the Ford actly worked; my how that under- lant concerned. standing returning is he was regard Echols, who had With gun pleadings, is not in but —that physical take a examination let’s that this man’s character feel returned to he impossible so bad it would being bond, released party a third a con- convince between he that he would be reinstated as soon as ‘Look, says flict He I and Echols. exonerated, counsel for the Union it but I it’s believe Echols believe said argument Court, the District impossible guy with a like this to part which was made a record grievance procedure,’ prove it in appeal, stated that Mr. was no Echols thing going go down and so' the longer with the He declared: judgment. say let’s he makes that him, happened “I don’t what know * ** assuming Echols I am whether or not will be available as statement, man that the made but not, witness or whether is dead or but grievance procedure (cid:127) we point At are told bad man.” just judgment I have makes the counsel for informed it without indicated and he makes Court: hostility, malice, it in makes * * * material, “If it is supplied.) good (Emphasis faith.” position. employed the still same argument strange Un- for a This is “THE He is? COURT: own mem- make one ion to Yes.” “MR. JAMES J'ACKSON: R. any bers, trouble never before who Union did not contradict Counsel rep- the Union—that this statement. To continue: ap- have assumed resentative could bad, pellant’s character was THE “COUNSEL FOR UNION: habit he had a may understood counsel Whatever reference the case might any “shooting people,” one lant or never had up and that doubt rights so It lant’s reinstatement. character assume gave up impossible con- Daniel that on the case. would be bad that Appealing party testi- denial of conflict of Echols’ in a vince a third Mr. Echols. taken out of mony appellant and his hands between committeemen, Yet, dispute between the three nameless Union far so *12 grievance is who from fur- apрellant And there withdrew the Mr. Echols. and disclosing any appellant’s bad consideration without of ther whatever no evidence “shooting peo- appellant. up notice to reasons and without or character habit of ple.” arguments of the The and the upon in case Union cast cloud their con- to the Daniel did not come Mr. resulting deprivation in action the prove impossible to it was clusion that appellant employment his and the live- statement Mr. Echols made the himself, wife, lihood of of his his and when exon- reinstated appellant would be children. charge So there of murder. of the erated did, by he even appellant The man is no reason to assume who was killed argument. Negro Daniel purposes Mr. was a Union official in the same and, appellant it was Local come conclusion that as did not to the as heretofore stated, impossible prove by made appellant that Mr. Echols this man called tele- because, phonе way counsel the told him on his statement grievant’s says, character Appellant, “the over to his home to kill Union bad, self-defense, I he has so understand in because Un- shot and killed this shooting up people trial, or some- and, habit ion official after a was found manslaughter. thing.” guilty Dan- Mr. fact is that The actual of murder or of not appel- appellant about Did the fact shot iel had no doubts whatever self- right It Mr. reinstatement. Lo- lant’s official defense a Union of the same Daniel, himself, signed, justify filed who cal and refusal his agent spite committeeman, reinstatement, the fact grievance guilty on Feb- of man- found not behalf language slaughter murder, only ruary 9, shown in de- in the and shot family footnote,1 The and, found ? of himself fense his manslaughter. rely upon guilty do not not murder or jus- in this faith in conduct affair And Mr. Daniel never lost Committee) Day Signed (Bargaining L. L. return to 1. did “On 2-8-70 seeking reinstatement Ford Mo. Co. Daniel” foregoing rights the reverse side all under U.A.W. contract. On discharged aggrieved statement, from Daniel continued: The you hаve said Lab. Rel. 1-16-69 for A.W.O.L. Ford Mo. Co. on “On 2-9-70 aggrieved discharged more work for no there is The Union contends been dept, you. Det. from detained Police Mike was made to 1-11-69. Where statement 12-13-68 This plant report employment office. clerk returned to Ford Wixom aggrieved of his in defense case for Abs acted for work. Lab. Rel. held a The family. protection discharged of his him. The statement was life and being guilty if he not of this made to him was found In view aggrieved Fo. Mo. Co. be reinstated. aggrieved the Co. felt was found trouble with On 2-5-70 Slaughter. guilty all conserned. the best for of Man aggrieved could contends the The union returned to Fo. Mo. On 2-9-70 job by being 1-10-69 seeking until from 12-13-68 reinstated with his seniority. was not therefore of detention full because ag- Adjustment Requested: abs. of on will. The The aggrieved from grieved med leave was on be reinstated with full sen. in- pay by Dept. When 8-12-68 to 12-13-68. 60 all for hours worked paint sprayers canselled. Leave was his Med. rein- earcirated from 1-16-69 until day notice sent.” There was statement. grievance reеmployed, They would be do not even he tify his At that was denied on March 1970. his conduct. criticize time, argu- plant committee- the three for the Union stated Counsel fur- had men withdrew that Ford Court the District ment to consulting ap- ther consideration without discharging appellant because cause knows, reason, pellant and, regardless for all of the one reading grievance. griev- ever although rested such a not, therefore, processed ance could discretion further. For months several Motor Com- It is contended happened, and did not know what had discharged appellant was pany that of it when he called learned January Company; 16, 1969, nothing more could Daniel and was grievance, disposition accord- the ing refusal be done. Where Union’s agreed procedure pro- act for an in a Union, *13 arbitrary, cannot cedure is binding that, appellant; ab- on advantage relying on the dis- of take by duty stating breach sence a charged employee’s to еxhaust failure bargaining under the collective by provided the contract. remedies agreement, no cause action was stat- ed; general rule, of available course, and that exhaustion is The necessary a every remedy Union remedies is internal that within available against organization prerequisite suit exhausted to labor by must be employee or Ford. the Union an the aid of require invoked. But this courts can be appellant has Union contends that The given and ment must a reasonable be constituting claim failed to state facts a application the facts to common-sense granted; he on which relief could be that case; exceptional this each and exhaust his has failed contractual to case. remedies, in failed that he has to ex- grievance pro- haust his internal Union estop are of the view that We cedures, which is- a condition to pel part Company to defend bringing of his suit. ground not appellant that did on the pursue remеdies, is administrative his given appellant Wheri was dis a controlling important con one of the and ciplinary discharge January 16, 1969, dn us, record before siderations. On the agent bargaining the Union in was bail, appellant, when his release on nothing But formed. the Union did at immediately to Relations went the Labor grievance, that time to file the Union a work, Ford, Department reporting for bargaining agent obviously relying on that and directed Mr. Echols was the Ford Labor Relations Officer’s state Department physical examina take reemployed ment that would tion, did, passed, was and which he and when was from he exonerated the murder thereupon soon told to for work as considering the ac original as he charge, exonerated was discharge prom tion was a in view of the that, at that time nothing However, ise of reinstatement. reemployed, was discharge done time of the discharging him, without estopped from file a based on the Labor during the notice to him absence his discharge. Then, Relations Officer’s prior detained ap when peared exonerated, estopped police; and further Company’s at the Ford office on refusing employment when he from February 9, 1970, he was told he had from the exonerated discharged been and there was no work regard Moreover, claimed When caused give discharge right be- Daniel to file a promise on the based during the month his statement cause of absence of the Officer police, Ford’s Department Labor detention between Relations from the Com- further notice least until the time reporting work at pany. consider, bail, under we was released bargaining contract the terms discharge Appellant’s could mentioned, absence this hereinafter disciplinary “disciplinary” A en- and that excusable discharge provided VII for in Article The Agreement, titled to be excused. Bargaining of the Collective disciplining provides contract quoted. 5(b), relat- heretofore Section cаuse, discharging employees for discharges, disciplinary provides: unjustly wrongfully act will not “(b) Representation Waiver agreement. terms of the violation signifies employe “When an say' goes contract, however, The Committeeman not want his does system established shall be hearing, disciplinary present at a verify fact permit will sign shall a waiver tele- notified that he has effect.” inability phone to work. of his foregoing implies be a there will rule is to be drawn conclusion hearing. no such disciplinary There work unable to if the any hearing. notice Appellant never had tele- notifies and so year until a disciplinary ina- phone, such because not have been His could later. excused, further bility, until at least because from the notice discipline nothing for which provision addition, rules make *14 re- not employee for who either does says: for Ford Counsel gives satisfactory rea- port for or work to the fact Plaintiff refers impossi- “The absence, it is unless son for his grievance on a not filed that was the comply re- with these him to ble for alleges timely he that basis he because quirements. sent such to be notice bargaining told that when he was exonerated according was the employee, * * *, reemployed. he would be provides if contract, that such * ** important for not it is [B]ut report Employment Office does not proceeding or to consider whether satisfactory this give reason for work or because, not statement was made Employment Office absence to the his for made, only apply to if it it would writing by employ- was telephone, his in or grievance the and wheth- merits his lose and will ment will be he terminated impossible er or not some excuse for seniority is his unless for is, meeting time in it- requirements. the limits which comply such him with self, for in the a matter review Griev- only conclusion to draw the reasonable So gives for foregoing ance Procedure and arbitration if he from the carry it the Union chooses to that far.” reasonable excuse for excused, at until further absence least But, under the state of the Company. notice case, record we must hold require- complied with he was told would reem by notifying Company, tele- ment of exonerated; ployed and he work, phone, unable to he was Company estopped from Ford dis work, report detention for because of his charging days him without notice three police of which represented after him it was guilty. he found At a time when not Company reemployed that he would be absence, his notice had medical leave of when he was exonerated. Company unable to that he was report with estoppel for work accordance other basis bargaining provisions. appel His contract reference denial excused, grievance. grievance excusable, Appellant’s absence lant’s Penalty” “Unjust felt filed discharge was based all con- was "the best Absence.” for “Unauthorized ap- cerned,” us, Company is man killed because thе record before theOn griev- pellant been had also denying appellant’s self-defense estopped from untimeliness, Motor ground on the ance man, Daniel, as a Union Certainly, allowed Mr. the contract he was under since duty filing well days did file three appellant. grievance, mis- had reemployment relying on griev- him into led months after About two and, exonerated whenever was denied filed, the ance was discharged instead, thereafter with the notation: Mr. Echols
without notice. Untimely,” not because had “Grievance days within three filed by been we are confronted conclusion, year After- before. lant’s decision our these facts that control ward, prior ef- spite wife, Daniel’s Appellant’s us: the record before Union, forts, representative of the as a leave, day of called his sick on the last appellant, the three on behalf Company, told them the Ford ap- committeemen, do police whose names being then detained record, approved pear the denial A for work. able grievance, thereupon with- released on month later bail, it from further consideration. drew immediately went to the Ford Echols, return to work. then, man, one Union Here Department of the of the Labor Relations Company, required Daniel committeeman—Mr. appellant take a doing everything to have he could (cid:127) — examination, passed. physical trying appellant reemployed set discharge, then he would “unjust Penalty” Mr. Echols aside an reemployed through soon exoner- as was filed on behalf charge. Five Echols, ated from the criminal appellant, while, as soon grievance, after Mr. Echols told Company, denied the *15 reemployed, signed a be “dis- he ciplinary” committeemen there were three Union of without grievance and de- who withdrew the so telling him. right appellant the further con- nied sideration and review. year
Approximately one later guilty Under the circumstances of lant found not of the criminal three Union immediately case the withdrawal the returned to the and appellant’s committeemen of for work. At (which Daniel, prepared by the that time the Em- bargaining agent) no ployment Office that he been dis- —without hearing, charged appellant, and tice to for without and that there was no work light reasons, the got and in the Appellant, once, there. bargaining plant as admit Daniel, facts must be considered com- us, claiming ted, mitteeman, is on record before there the grievance, file a jury question appellant’s discharge unjust presented of fact for pen- the anwas arbitrary alty seeking to whether such action and reinstatement. Mr. faith, strong setting in in Un breach the and bad Daniel made a statement duty representation. Fur police, ion's ther, fair forth arrest and question 1968, to whether 12, detention December constituting January representations, 11, 1969; reciting es claimed the state- appellant by toppel, made ment made La- were the Ford January reеmployed ex bor would be Department, Relations 1969, ; representations, 11, whether such rein- onerated would be made, reasonably guilty. stated if he were found not were considered equivalent Daniel further a leave absence stated be
99 exonerated; ORDER DENYING PETITIONS and until faith FOR REHEARING acted bad whether damage— detriment rehearing having petitions jury on questions all these are heard, upon consid- due come to be of the ease. the retrial petitions eration, is ordered that be, hereby and are denied. plead- facts, as disclosed subsequent dispute surrounding are ings, All facts in case events all dispute. bond, remand. Day’s will be determined on release on ma- relevant facts are Since these Judge opin- PHILLIPS Chief whether terial issues rehearing petitions ion whether the Union was unlawful majority granted; should be duty representation, of fair breached its concurring opinions this Court summary judgment should the award withdrawn; the order should be summary motion for vacated. “On summary judgment granting should to re- judgment, the сourt it is not for remanded to vacated and the case deciding wheth- issues. factual solve merits. District for trial Court fact material there an issue of er case, must resolved doubts all summary moving party for a Fidelity & judgment.” American Cox v. (C.A.9). Co., Casualty F.2d foregoing, with the In accordance granting District Court
order of summary judgment is vacated America, UNITED STATES merits. trial on the remanded for a case Appellee, v. Judge (concurring PHILLIPS, Chief JORDAN, Appellant. Ronald W. result). No. 72-1074. District Court The record before Appeals, United States Court pleadings, motions consisted of the Fourth Circuit. judgment summary opposition and in May 30, Argued 1972. Upon parties. from all and affidavits Sept. 1972. Decided material, we can consideration of this genuine say issue “that en- the movant material fact *16 judgment of law.”
titled as a matter 56(c), Fed.R.Civ.P.
See Rule
I concur the conclusion genuine re- fact of material issues are summary judg- quiring reversal of concerning events
ment. -Material facts Day’s
subsequent bond release dispute. are relevant These facts discharge of the issue of whether
Day whether unlawful and the Un- duty representa- of fair
ion breached agree the order I therefore
tion.
granting summary judgment vacated
and the remanded to District case
Court for on the merits. a trial