Kennedy v. UAW-AFL-CIO LOCAL NO. 659 , 3 Mich. App. 629 ( 1966 )

3 Mich. App. 629 (1966) 143 N.W.2d 133

KENNEDY
v.
UAW-AFL-CIO LOCAL NO. 659.

Docket No. 1,319.

Michigan Court of Appeals.

Decided June 28, 1966.

A. Glenn Epps, for plaintiff.

Aloysius F. Power, Harry S. Benjamin Jr., K. Douglas Mann, Eugene L. Hartwig, and George Cherpelis for defendant General Motors Corporation.

Jordan Rossen, Stephen Schlossberg, John A. Fillion, Bernard F. Ashe, and Michael S. Friedman (Jordan Rossen, of counsel), for union defendants.

QUINN, J.

Plaintiff, a member of defendant union, filed this action for damages on the theory that the union failed to prosecute to conclusion the grievance plaintiff filed against Chevrolet National Parts Distribution for the latter's refusal to rehire him and reinstate his seniority rights. The theory of plaintiff's claim against the defendant corporation is that termination of his employment, refusal to rehire and reinstate his seniority violated the contract between the defendant union and the defendant corporation. Defendant union moved for accelerated judgment under GCR 1963, 116 on the basis that the court lacked jurisdiction because plaintiff had neither utilized nor exhausted the remedies available to him under the constitution and by-laws of the defendant union. Defendant corporation answered and pleaded as an affirmative defense plaintiff's failure to comply with union grievance procedure. Defendant corporation then moved for summary judgment under GCR 1963, 117 on the basis plaintiff's complaint failed to state a claim upon which relief could be granted. The trial court granted both motions; plaintiff then moved to set aside this action by the trial court. This motion was denied and plaintiff appeals.

In the posture that the case reaches this Court, the issue with respect to the union is: may a union member sue his union for allegedly not properly processing his grievance without his having utilized or attempted to exhaust his intraunion remedies? The issue with respect to the corporation is: has plaintiff alleged facts either in his complaint or by way of counter-affidavit upon which relief can be granted?

Plaintiff was employed by Chevrolet National Parts Distribution for several years prior to June 18, 1961, when he was placed on sick leave. On or about June 29, 1961, plaintiff was committed as a mentally ill person to Pontiac State Hospital, from which he escaped about September 17, 1961. April 2, 1962, he was discharged by his employer as unavailable for work. May 7, 1963, he was restored to soundness of mind by the committing court and the next day he appeared at Chevrolet National Parts Distribution and requested reinstatement and work. This was refused. On or about May 22, 1963, defendant union filed a grievance on behalf of plaintiff for the refusal of defendant corporation to rehire and reinstate him. This grievance was partially processed and then withdrawn by the union.

Section 13 of article 32 of the union constitution reads:

"It shall be the duty of any member or subordinate body who feels aggrieved by any action, decision or penalty imposed upon him or it, to exhaust his or its remedy and all appeals therefrom under the laws of this International Union prior to appealing to a civil court or governmental agency for redress."

Plaintiff's complaint discloses that he has not exhausted the grievance procedure and he pleads no bad faith, arbitrary action or fraud on the part of the union in processing his grievance. Cortez v. Ford Motor Company (1957), 349 Mich. 108, controls, and the trial court properly ruled it had no jurisdiction of the claim against the union.

Plaintiff's complaint against the defendant corporation is also fatally defective. It alleges no facts demonstrating fraud, bad faith, or lack of fair representation by the union, and without such a showing the grievance procedure of the union contract is plaintiff's exclusive remedy. Republic Steel Corp. v. Maddox (1965), 379 U.S. 650 (85 S. Ct. 614, 13 L ed 2d 580). The trial court properly ruled that plaintiff had failed to state a claim against defendant corporation on which relief could be granted.

Affirmed, with costs to appellees.

McGREGOR, P.J., and BURNS, J., concurred.