Plaintiff Prank Zdero was in the employ of defendant Briggs Manufacturing Company from January, 1923, to September 1, 1942. In 1936 he joined defendant Local Union No. 212 (UAW-CIO) and in 1942 he was transferred to another Briggs plant where defendant Local Union No. 742 (UAW-CIO) wаs the exclusive bargaining agent.
On September 1, 1942, Zdero was injured and was paid compensation at the ratе of $18 per week, until January 12,1943. The agreement covering this compensation was approved by the department of labor and industry.
All of the necessary facts pertaining to the compensation proceеdings appear in the record by stipulation between the parties. The opinion of the commission, which is appended thereto, refers to the fact that the medical testimony conclusively shows that plaintiff was аble to return to work, despite his claim to the contrary, and was unwilling to do so.
Zdero was removed from the Briggs pаy roll on May 14,1943, because of his refusal to accept offered employment. At the time of his discharge a collec *552 tive bargaining agreement, dated November, 1942, was in effect between both of tbe local unions and tbe defendant company. This agreement established seniority rights, grounds for forfeiture thereof, and a grievance procedure for adjustment of differences between the company and employee members of these unions
After futile attempts to subsequently obtain reemployment at Briggs, Zdero enlisted the aid of the local unions to help him get back on the job, but those efforts were unsuccessful. On October 9,1947, plaintiff, accompanied by the president of Local No. 212 and another union official, met with the representatives of Briggs rеgarding Zdero’s reinstatement. A letter from the president of Local No. 212 to the president of Local No. 742, dаted October 10, 1947, states that Briggs would not reinstate Zdero and Local No. 742 was requested to initiate grievancе proceedings in his behalf. On August 18,1948, more than 5 years after his discharge, Zdero brought suit in equity for specific performance of his contract of employment and for reinstatement to his former or similar employment, with full seniority rights. At thе close of plaintiff’s proofs the motions of the several defendants to dismiss were granted.
Appellant’s argument that he was denied an existent equitable remedy is untenable. The trial court entertained his bill of complаint, denied, defendants’ earlier motions to dismiss oh the pleadings, and only acted after plaintiff had concludеd his proofs.
The decisive question is whether Zdero established a prima facie case for equitable protection of his seniority rights and proved his damages for the claimеd breach of his employment contract, both against defendant company and. defendant unions.
Specific performance is an equitable remedy, is not one of right, but of grace. It rests in the sound discretion of the trial court, which is to be exercised in
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the light of the facts of the case.
Ressler
v.
O’Malley.
Seniority rights are not inherent, hut exist sоlely by virtue of a contract, either between the employer and his employees or a union acting in thеir behalf. These rights are subject to the terms and conditions of the contract, and in this instance their benefits inure thrоugh the union to its members. See
Ryan
v.
New York Central Railroad Co.,
Article 4, § 8 of the agreement, which was in effect at the time of Zdero’s discharge, reads in part:
“Seniority rights shall he forfeited if an employee is absent over 18 months, quits of his own accord, or is discharged, or refuses to return to work when called.”
Defendant Briggs in its answer to plaintiff’s bill of complaint avers that:
“On and after January 12, 1943, plaintiff was offered employment similar in nature to that formerly held by him and which plaintiff was able to perform; that he continuously refused to accept such employment. Thereafter, on May 14,1943, becausе of plaintiff’s refusal to accept such employment, his name was removed from the payroll of defendant.”
Plaintiff’s failure to deny this allegation is an admission thereof.
Neada
v.
State Farm Life Insurance Co.,
On a motion to dismiss a bill of complaint all proрerly alleged facts are to be accepted as true; and uncontroverted facts well pleaded in defendants’ an
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swer must be taken as admitted and considered in deciding the motion.
Grevnin
v.
Collateral Liquidation, Inc.,
We base our conclusiоns on appeal upon the record before us.
Howe
v.
Webert,
The record is barren of any evidence showing that Zdеro made his request for reemployment within the requisite time, nor does it show to whom any requests were made. We find nо breach of contract by defendant Briggs Manufacturing Company nor any failure on the part of the respеctive local unions to> do all in their power to aid and assist Zdero in securing reinstatement. There is a complete absence of any testimony indicating that the defendants, Local Unions Nos. 212 and 272, acted in bad faith or in an arbitrary or negligent manner. Courts of equity, without such proofs, do not interfere with the acts of :the officers оf labor unions.
Hartley
v.
Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees,
There is nothing in this record which requires reversal of the decree of the trial judge. It is affirmed,, with costs to appellees.