Edward A. Winter v. Local Union No. 639, Affiliated With the International Brotherhood of Teamsters and Maloney Concrete Company (Two Cases) , 569 F.2d 146 ( 1978 )

WILKEY, Circuit Judge:

This case involves a suit by plaintiff Winter against his employer, Maloney Concrete Co., for breach of contract, and against his union, Teamsters Local 639, for breach of its duty of fair representation. The facts are simple and undisputed. In 1971, Winter filed a grievance asserting that seniority should be awarded on a company-wide, rather than on a plant-wide, basis. Winter’s assertion contradicted long-standing industry practice under the current and preceding collective bargaining contracts.¹ After several meetings with management (one of which Winter attended) the union decided not to process the grievance further. Winter neither protested nor appealed. Three years later, Winter filed a similar grievance. The union arranged a meeting with management, which Winter failed to attend. Winter did not notify the union to explain his absence.² In light of Winter’s failure to appear, and in light of the fact that Winter’s 1974 grievance was largely a restatement of his 1971 grievance, which had been disposed of on the merits, the union declined to process the 1974 grievance further.

On 3 April 1974 Winter brought suit under § 301 of the Labor-Management Relations Act.³ He alleged that Maloney had breached the collective bargaining contract by refusing to award him company-wide seniority, and that Local 639 had breached its duty of fair representation by refusing to process his grievance out of political hostility towards him. The district court granted summary judgment both to the union and to the employer, on the ground that Winter had failed to exhaust his internal union remedies.⁴ We affirm both grants of summary judgment, although our reasoning departs somewhat from that of the district court.

A. Winter’s Suit Against the Union

The Landrum-Griffin Act specifically permits unions to require their members to exhaust internal union remedies before suing the union.⁵ Although this language is discretionary, the circuit courts have unanimously upheld the exhaustion requirement and commended its utility.⁶ In this case, the union constitution and by-laws offer several remedies and expressly require that they be exhausted.⁷ The constitution provides that an aggrieved member may file charges with the local Executive Board; if he loses there, he may appeal to the General Executive Board, which may try the case de novo and must in any event render decision within 15 days.⁸ The constitution also provides for direct appeal to the International president.⁹ Winter concededly failed to avail himself of these remedies. He seeks to excuse his neglect by arguing that exhaustion of union remedies would have been futile.

Exhaustion of intra-union remedies could be futile for two reasons. First, the union constitution might provide no adequate procedural route to the relief requested. In this case, the plaintiff seeks both money damages and an injunction directing Local 639 to process his grievances nondiscriminatorily in the future.¹⁰ Winter probably could not have obtained money damages through union disciplinary channels. The union constitution provides, however, that decisions and penalties imposed in disciplinary proceedings “may consist of . commands to do or perform, or refrain from doing or performing, specified acts.”¹¹ Winter could thus have obtained some of what he seeks, viz., an injunction, by a favorable outcome in the union proceedings.¹² Since the courts generally have insisted on a “clear and positive showing of futility” before excusing a failure to exhaust,¹³ we conclude that Winter cannot be excused on the ground that the absence of available procedures would have made exhaustion futile.

Exhaustion might be futile, secondly, because union officials are so hostile to a worker that he could not hope to get a fair hearing, regardless of the procedures available. The cases that have excused failure to exhaust on this ground, however, including the cases plaintiff cites,¹⁴ have involved quite extreme facts.¹⁵ Evidently, in order to prevail on this ground Winter must make a specific and convincing showing of union animus.

This showing can be made in two ways. First, it might be inferred from the circumstances surrounding the grievance process. In this case, however, the facts create no inference of union hostility, arbitrariness, or bad faith. Plaintiff was proffering, for the second time, what seems to have been a frivolous interpretation of the contract, and inexcusably failed to attend a grievance meeting the union had arranged. Given this, the union’s election not to process his grievance further gives rise to no suggestion of hostility!

Second, a showing of hostility can be made by citing concrete evidence of personal animus. Winter does not do so. He presents some evidence that relevant union officials knew of his political activities in opposition to them.¹⁶ He then makes conclusory allegations that the union was hostile to him on this account.¹⁷. No evidence of actual hostility is shown. In fact, plaintiff’s claim seems ultimately to be that he is excused from exhausting union remedies by the mere fact that he has made sworn allegations that the union’s conduct was “politically motivated, in bad faith, and discriminatory.” ¹⁸ This argument is without merit. In any suit alleging unfair representation, the union member will make allegations (sworn or unsworn) that the union’s conduct was politically motivated, in bad faith, and discriminatory. That, indeed, is the gravamen of his case in chief. If such allegations suffice to justify failure to exhaust union remedies, the exhaustion requirement is a nullity.

Such allegations, at any rate, do not satisfy Fed.R.Civ.P. 56(e). In order to survive a motion for summary judgment under that rule, a party “may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Plaintiff here has set forth no specific facts showing that there is a genuine issue regarding union hostility towards him,¹⁹ and hence regarding the futility of exhausting available union remedies. For this reason, the district judge properly awarded summary judgment in favor of Local 639.

B. Winter’s Suit Against the Employer

The district court held that the defense of failure to exhaust intra-union remedies was available, not only to the union, but also to the employer. We disagree, at least on the facts of this case. The few courts that have considered this question have held, almost unanimously, that the defense of failure to exhaust union remedies is not available to the employer.²⁰ The reason is that the union constitution, which provides for the internal remedies, is a “contract” only between the union and its members, and the employer cannot avail himself of the union’s contractual defense.²¹ No court of appeals has held that the defense is available to the employer; one circuit has said in dictum that it is not.²² The only court of appeals to suggest otherwise was the Seventh Circuit in Orphan v. Furn-co Construction Corp.²³ which implied that the employer might raise the exhaustion defense if he could show a “formal appeal or other procedure provided by the Union constitution or by-laws which so certainly holds out the prospect of . . relief that the plaintiffs could justifiably be expected to have recourse to it before filing suit.”²⁴ In Orphan, however, the constitution provided for no formal appeals procedure, but merely for “criminal-type prosecutions against Union members and officers charged with specified offenses.”²⁵ The court held that the prospect of relief held out by such procedures was sufficiently uncertain to make the exhaustion defense unavailable to the employer. The procedures at issue here, significantly, are quite similar to those at issue in Orphan : the Teamsters’ constitution likewise provides no procedures for appealing adverse grievance decisions, but only trial-type procedures for prosecuting offending union members. Even under the Orphan dictum, therefore, there is no circuit court authority for making the defense of failure to exhaust union remedies available to the employer on the facts of this case.²⁶

This conclusion, however, does not end the matter. In the district court, the employer urged as its first ground for summary judgment that “[tjhere was no breach of the collective bargaining contract by Maloney Concrete Company.”²⁷ The employer repeats this argument here.²⁸ The trial court did not reach this question. However, this Court has held that “[a]n appellate court has discretion to uphold a summary judgment under a legal theory different from that applied by the trial court, and rest the affirmance ‘on any ground that finds support in the record’ . . . .”²⁹ The record in this case is replete with evidence that Maloney did not breach the collective bargaining contract by refusing to award Winter company-wide seniority.³⁰ Winter has presented no evidence to contradict Maloney’s affidavits. For this reason, there is no genuine issue of fact for trial as to the interpretation of the contract and summary judgment should be awarded to the employer on the ground that there was no breach of the collective bargaining contract by it.

CONCLUSION

Because Winter failed to exhaust his available internal union remedies, the district judge properly granted Local 639’s motion for summary judgment. Because there exists no genuine issue as to the employer’s breach of the collective bargaining contract, the district judge properly granted Maloney Concrete’s motion for summary judgment. The decision of the district court accordingly is

Affirmed.

1 . See Appendix (App.) 22-42, 70.

2 . App. 29. In deposition, Winter stated that he refused to appear at the meeting because he had been told that his attendance would be “on [his] own time.” App. 46. Operating under this assumption, he said, he feared that absence from work would have rendered him ineligible for weekend work assignments. App. 46-47. However, under the collective bargaining contract attendance at grievance meetings was an excused absence, and Winter’s absence from work would thus not have prejudiced him. See App. 29.

3 . 29 U.S.C. § 185(a) (1970):

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

4 . The district court’s orders granting summary judgment are reprinted in App. at 66, 89-90.

5 . 29 U.S.C. § 411(a)(4) (1970):

No labor organization shall limit the right of any member thereof to institute an action in any court, . . . Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof

6 . See, e. g., Ruzicka v. General Motors Corp., 523 F.2d 306, 311-12 (6th Cir. 1975) (citing cases); Newgent v. Modine Mfg. Co., 495 F.2d 919, 927 (7th Cir. 1974); Imel v. Zohn Mfg. Co., 481 F.2d 181, 183-84 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974); Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969); Neal v. System Bd. of Adj., 348 F.2d 722, 726 (8th Cir. 1965). Insistence on exhaustion of union remedies is usually rationalized as “staying the hand of ‘judicial interference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own internal affairs.’ ” Imel, 481 F.2d at 183, quoting Brady, 401 F.2d at 104.

7 . Teamsters, Const, art. xix, § 12(a) (1971); By-laws of the Drivers, Chauffeurs and Helpers Local Union No. 639, Washington, D. C., art. xxii.

8 . Teamsters, Const, art. xix, §§ 1-3 (1971).

9 . Id. art vi, § 2(a).

10 . App. 10-11.

11 . Teamsters, Const, art. xix, § 9(a) (1971).

12 . Indeed, Winter does not seriously contend that the union procedures here were per se inadequate. See Brief of Appellant at 10-12; Reply Brief of Appellant at 4-5.

13 . Imel v. Zohn Mfg. Co., 481 F.2d 181, 184 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974).

14 . See Reply Brief of Appellant at 4.

15 . See, e. g., Fulton Lodge No. 2, IAM v. Nix, 415 F.2d 212, 216 (5th Cir. 1969), cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972) (exhaustion futile where remedy was personal appeal to officers with whom expelled member had “continuing difficulties”); Farowitz v. Musicians Local 802, 330 F.2d 999, 1003 (2d Cir. 1964) (exhaustion futile where appellate board had consistently opposed worker’s position and had asserted its position in litigation for four years); Calagaz v. Calhoon, 309 F.2d 248, 260 (5th Cir. 1962) (exhaustion futile where appeal would be to officers against whom complaint directed); Adamczewski v. Local 1487, IAM, 84 L.R.R.M. 2791 (N.D.Ill. 1972) (exhaustion futile prior to enjoining illegal union disciplinary proceedings where other union members who had engaged in same conduct had already been sanctioned in such proceedings).

16 . See Affidavit of Daniel George, App. 55-56.

17 . See Complaint, App. 9-10; Brief of Appellant at 4, 12; Reply Brief of Appellant at 5, 13.

18 . Brief of Appellant at 12.

19 . As noted above, p. 150 supra, and as pointed out in the dissent, Diss. op. at 155, Winter presented some evidence that the business agent who processed his complaint was aware of his political activities. This evidence, however, standing alone, creates no genuine issue for trial on the question of union hostility: assuming that union officials knew of Winter’s opposition, their refusal to process his grievance on the facts of this case suggests no hostility, unless we adopt the reasoning, rejected by the scholastics, of post hoc, ergo propter hoc. In most unfair representation cases, union officials will be aware of plaintiff’s political activities; it would be odd if they were not. If a mere showing of this awareness sufficed to get a plaintiff past summary judgment for failure to exhaust union remedies, summary judgment would effectively be unavailable to the union on this issue.

20 . See, e. g., Orphan v. Fumco Constr. Corp., 466 F.2d 795, 801 & n.12 (7th Cir. 1972) (citing cases).

21 . Id at 800-01.

22 . See Retana v. Apartment Operators Local 14, 453 F.2d 1018, 1027 n.16 (9th Cir. 1972).

23 . 466 F.2d 795 (7th Cir. 1972).

24 . Id. at 801 (emphasis added).

25 . Id.

26 . Several district courts have concluded, to the contrary, that the exhaustion defense should generally be open to the employer. See Bradley v. Ford Motor Co., 417 F.Supp. 23, 26 (N.D.Ill.1975); Fleming v. Chrysler Corp., 416 F.Supp. 1258, 1266 (E.D.Mich.1975); Brookins v. Chrysler Corp., 381 F.Supp. 563, 568-69 (E.D.Mich.1974); Harrington v. Chrysler Corp., 303 F.Supp. 495 (E.D.Mich.1969). Several other district court opinions, whose holding is unclear, may go off on this ground. See Brookins, 381 F.Supp. at 568 (citing cases). The most convincing rationale for the general availability of the exhaustion defense to the employer derives, collaterally, from Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). In those cases, the Court held generally that the employer is entitled to rely on the outcome of a grievance arbitration, and is thus insulated from a breach of contract suit, unless the union breached its duty of fair representation during the grievance process. Accordingly, some district courts have reasoned that, once the union is dismissed from the suit owing to its member’s failure to exhaust remedies, it would be inequitable to require the employer to defend the suit alone, since exhaustion of remedies might reveal the union’s good faith and thus cause the contract action against the employer to evanesce. As the Brookins court stated:

By exhausting his internal remedies the employee may be able to eliminate the very wrong of which he complains, not merely obtain a remedy therefor in another forum. If the union’s wrongful refusal to continue the grievance were reversed without prejudice to his rights, the employee would no longer have a cause of action for breach of the duty of fair representation, and consequently would have no right under Vaca to sue his employer for breach of contract.

Id. at 569 (emphasis added).

Although this argument is not without appeal, it should be noted that, of the four district court cases cited above three, including Broo-kins, come from the Eastern District of Michigan and all four involve the UAW. The UAW, significantly, has what is probably the most elaborate and comprehensive system of internal appeals of any American union, culminating in an appeal to a non-partisan panel composed of eminent persons with no connection to the Auto Workers. The UAW procedures, virtually unique among unions, may well enable a worker to get redress “without prejudice to his rights.” The Teamsters’ “criminal-type” procedures, although they may permit Winter to obtain some relief, see p. 5 supra, are far less likely to “make him whole.” See 381 F.Supp. at 569. For much the same reason that the Orphan dictum is inapplicable, therefore, we decline to embrace the Brookins rationale here.

27 . App. 67.

28 . Brief of Appellant Maloney Concrete Co. at 8-12.

29 . United States v. General Motors Corp., 171 U.S.App.D.C. 27, 48, 518 F.2d 420, 441 (1975) (Leventhal, J.).

30 . See App. 22-42, 70. The collective bargaining contract was silent as to whether seniority was to be awarded on a company-wide or plant-wide basis. This is not to say, of course, that the contract was “ambiguous.” See Diss. op. at 154. A collective bargaining contract is too slender a volume to answer all questions that conceivably could arise during the operation of a complex industrial enterprise. See Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-99 (1959). It is well established that when gaps in the contract's coverage occur, as they inevitably will, they are “to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574. 580. 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). The agreement in this case is a mul-tiemployer contract between Local 639 and seven concrete companies. Six of Local 639’s shop stewards (two employed by Maloney, four employed by the other companies) submitted sworn affidavits stating that it had long been the practice in their companies and in the industry as a whole to award seniority only on a plant-wide basis, and that they had never known the practice to be otherwise in their average 20-year experience on the job. App. 31-42. In view of these affidavits, which are uncontested, the “terms” of the collective bargaining contract are perfectly clear.