J. H. Gillis, J.
Plaintiff Richard Lowe was a member of defendant Local 705, Hotel and Restaurant Employees Union, at the time he was employed as a maintenance man by the Young Women’s Christian Association (hereafter referred to as YWCA). The terms of employment were controlled by the collective bargaining agreement between the employer and Local 705, among others.
Plaintiff was discharged in 1963 by the YWCA after an alleged altercation between him and a female supervisor. It was the personnel policy of the employer to dismiss employees who were involved in employment trouble after previously having received two disciplinary letters. Plaintiff received written disciplinary warnings on two separate occasions, in 1958 and 1962.
After his discharge, plaintiff filed a grievance with his union representative alleging that the employer had breached the collective bargaining agreement by discharging him. A union representative investigated the facts surrounding plaintiff’s griev[70]*70anee. The results of the investigation were reported to the union’s Grievance Committee, and the committee concluded that plaintiff’s discharge was for good cause. Plaintiff appealed to the union’s Joint Executive Board, which affirmed the Grievance Committee’s finding. Following denial of his grievance, plaintiff wrote an informal letter1 to the general president of the international union. The response plaintiff received urged him to take his grievance back to the local union secretary-treasurer, Mrs. Myra Wolfgang, also a defendant herein.
Plaintiff then turned to the courts for relief. He commenced an action against the YWCA2, the union, and Mrs. Wolfgang, alleging that he was wrongfully discharged, that the employer and union conspired against him to deprive him of his employment, and that the union failed to process his grievance in good faith'.
At the close of plaintiff’s proofs, the trial court granted a partial directed verdict in defendants’ favor, GCB 1963, 515.1. The court ruled that plaintiff failed to establish a prima- facie case of conspiracy. The issue of good faith representation went to the jury, and they returned an award of $7990 for plaintiff.
Defendants raise two issues on appeal. They first contend that the trial court erred in denying their motion for summary judgment, GCB 1963, 117.2(1). They argue that plaintiff failed to exhaust [71]*71his intra-union remedies before seeking judicial redress. The defense buttresses its argument with the settled doctrine that, generally, aggrieved union members must exhaust their union remedies before seeking judicial redress. This is likewise a substantial Federal and state law of collective bargaining. Republic Steel Corporation v. Maddox (1965), 379 US 650 (85 S Ct 614, 13 L Ed 2d 580); Seay v. McDonnell Douglas Corporation (CA9, 1970), 427 F2d 996; Anderson v. Ford Motor Company (ED Mich, 1970), 319 F Supp 134; Mayo v. Great Lakes Greyhound Lines (1952), 333 Mich 205; Knox v. Local 900, UAW-CIO (1960), 361 Mich 257.
However, narrow exceptions, when satisfied, have removed the complainant’s cause of action from beneath the tutelage of the exhaustion doctrine. Howland v. Local Union 306, UAW-CIO (1948), 323 Mich 305; Vaca v. Sipes (1967), 386 US 171 (87 S Ct 903, 17 L Ed 2d 842).
This Court’s holding in Harrison v. Arrow Metal Products Corporation (1969), 20 Mich App 590, leave to appeal denied (1970), 383 Mich 816, is dispositive. There, the majority held that the aggrieved employee
“must allege facts from which it may be reasonably inferred either that he duly exhausted his union remedies, or that resort to such remedies would be ineffective, if not futile, or that the union breached its duty of fair representation.” Harrison v. Arrow Metal Products Corporation, supra, p 603.
Plaintiff, in his amended complaint, alleged that the employer and union conspired against him, and that the union breached its duty of fair representation. Despite the questionable adequacy of plaintiff’s [72]*72complaint,3 the trial court, once satisfied that plaintiff had stated a cause of action, did not err in accepting jurisdiction over this matter. Vaca v. Sipes, supra, at 186 (87 S Ct at 914, 17 L Ed 2d at 855); see also Harrison v. Arrow Metal Products Corporation, supra, 617-628 (J. H. Gillis, J., concurring in part, dissenting in part).
The heart of plaintiff’s suit is rooted in his allegation that defendants breached their duty of fair [73]*73representation. Plaintiff argues that he was discharged for insufficient cause, and furthermore that the union’s investigation should have disclosed this. He concludes that the union failed to represent him in the utmost good faith when it refused to take his grievance to arbitration.
The fiduciary duty of fair- representation in the administration and enforcement of collective bargaining agreements has been imposed upon unions by federal law.4 Cortez v. Ford Motor Company (1957), 349 Mich 108; Brady v. Trans World Airlines, Inc. (CA 3, 1968), 401 F2d 87, 94, cert den 393 US 1048 (89 S Ct 681, 21 L Ed 2d 691); Sciaraffa v. Oxford Paper Company (D Me, 1970), 310 F Supp 891, 901. This obligation is correlative to the right of a union to represent all the employees in a bargaining unit as their exclusive agent, despite opposition from a minority. Bazarte v. United Transportation Union (CA 3, 1970), 429 F2d 868, 871. Similarly, the employee has made personal concessions to achieve collective solidarity.
“The employee has gained bargaining strength through representation by his union but has surrendered his right to make ‘the law of the job,’ and his interests are subordinated to those of the bargaining unit as a whole.” Harris v. Chemical Leaman Tank Lines, Inc., (CA 5, 1971), 437 F2d 167, 171.
Part of a union’s duty of fair representation is to “serve the interests of all members without hos[74]*74tility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct”, Vaca v. Sipes, supra, at 177 (87 S Ct at 910, 17 L Ed 2d at 850). In exercising its discretion, the union has the power “to sift out frivolous grievances, to abandon processing of a grievance which it determines in good faith to be meritless, and to settle disputes with the employer short of arbitration”. Harris v. Chemical Leaman Tank Lines, Inc., supra, at 171. In so doing,
“the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved.” Vaca v. Sipes, supra, at 191 (87 S Ct at 917, 17 L Ed 2d at 858). Also see: Encina v. Tony Lama Company
Free access — add to your briefcase to read the full text and ask questions with AI
J. H. Gillis, J.
Plaintiff Richard Lowe was a member of defendant Local 705, Hotel and Restaurant Employees Union, at the time he was employed as a maintenance man by the Young Women’s Christian Association (hereafter referred to as YWCA). The terms of employment were controlled by the collective bargaining agreement between the employer and Local 705, among others.
Plaintiff was discharged in 1963 by the YWCA after an alleged altercation between him and a female supervisor. It was the personnel policy of the employer to dismiss employees who were involved in employment trouble after previously having received two disciplinary letters. Plaintiff received written disciplinary warnings on two separate occasions, in 1958 and 1962.
After his discharge, plaintiff filed a grievance with his union representative alleging that the employer had breached the collective bargaining agreement by discharging him. A union representative investigated the facts surrounding plaintiff’s griev[70]*70anee. The results of the investigation were reported to the union’s Grievance Committee, and the committee concluded that plaintiff’s discharge was for good cause. Plaintiff appealed to the union’s Joint Executive Board, which affirmed the Grievance Committee’s finding. Following denial of his grievance, plaintiff wrote an informal letter1 to the general president of the international union. The response plaintiff received urged him to take his grievance back to the local union secretary-treasurer, Mrs. Myra Wolfgang, also a defendant herein.
Plaintiff then turned to the courts for relief. He commenced an action against the YWCA2, the union, and Mrs. Wolfgang, alleging that he was wrongfully discharged, that the employer and union conspired against him to deprive him of his employment, and that the union failed to process his grievance in good faith'.
At the close of plaintiff’s proofs, the trial court granted a partial directed verdict in defendants’ favor, GCB 1963, 515.1. The court ruled that plaintiff failed to establish a prima- facie case of conspiracy. The issue of good faith representation went to the jury, and they returned an award of $7990 for plaintiff.
Defendants raise two issues on appeal. They first contend that the trial court erred in denying their motion for summary judgment, GCB 1963, 117.2(1). They argue that plaintiff failed to exhaust [71]*71his intra-union remedies before seeking judicial redress. The defense buttresses its argument with the settled doctrine that, generally, aggrieved union members must exhaust their union remedies before seeking judicial redress. This is likewise a substantial Federal and state law of collective bargaining. Republic Steel Corporation v. Maddox (1965), 379 US 650 (85 S Ct 614, 13 L Ed 2d 580); Seay v. McDonnell Douglas Corporation (CA9, 1970), 427 F2d 996; Anderson v. Ford Motor Company (ED Mich, 1970), 319 F Supp 134; Mayo v. Great Lakes Greyhound Lines (1952), 333 Mich 205; Knox v. Local 900, UAW-CIO (1960), 361 Mich 257.
However, narrow exceptions, when satisfied, have removed the complainant’s cause of action from beneath the tutelage of the exhaustion doctrine. Howland v. Local Union 306, UAW-CIO (1948), 323 Mich 305; Vaca v. Sipes (1967), 386 US 171 (87 S Ct 903, 17 L Ed 2d 842).
This Court’s holding in Harrison v. Arrow Metal Products Corporation (1969), 20 Mich App 590, leave to appeal denied (1970), 383 Mich 816, is dispositive. There, the majority held that the aggrieved employee
“must allege facts from which it may be reasonably inferred either that he duly exhausted his union remedies, or that resort to such remedies would be ineffective, if not futile, or that the union breached its duty of fair representation.” Harrison v. Arrow Metal Products Corporation, supra, p 603.
Plaintiff, in his amended complaint, alleged that the employer and union conspired against him, and that the union breached its duty of fair representation. Despite the questionable adequacy of plaintiff’s [72]*72complaint,3 the trial court, once satisfied that plaintiff had stated a cause of action, did not err in accepting jurisdiction over this matter. Vaca v. Sipes, supra, at 186 (87 S Ct at 914, 17 L Ed 2d at 855); see also Harrison v. Arrow Metal Products Corporation, supra, 617-628 (J. H. Gillis, J., concurring in part, dissenting in part).
The heart of plaintiff’s suit is rooted in his allegation that defendants breached their duty of fair [73]*73representation. Plaintiff argues that he was discharged for insufficient cause, and furthermore that the union’s investigation should have disclosed this. He concludes that the union failed to represent him in the utmost good faith when it refused to take his grievance to arbitration.
The fiduciary duty of fair- representation in the administration and enforcement of collective bargaining agreements has been imposed upon unions by federal law.4 Cortez v. Ford Motor Company (1957), 349 Mich 108; Brady v. Trans World Airlines, Inc. (CA 3, 1968), 401 F2d 87, 94, cert den 393 US 1048 (89 S Ct 681, 21 L Ed 2d 691); Sciaraffa v. Oxford Paper Company (D Me, 1970), 310 F Supp 891, 901. This obligation is correlative to the right of a union to represent all the employees in a bargaining unit as their exclusive agent, despite opposition from a minority. Bazarte v. United Transportation Union (CA 3, 1970), 429 F2d 868, 871. Similarly, the employee has made personal concessions to achieve collective solidarity.
“The employee has gained bargaining strength through representation by his union but has surrendered his right to make ‘the law of the job,’ and his interests are subordinated to those of the bargaining unit as a whole.” Harris v. Chemical Leaman Tank Lines, Inc., (CA 5, 1971), 437 F2d 167, 171.
Part of a union’s duty of fair representation is to “serve the interests of all members without hos[74]*74tility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct”, Vaca v. Sipes, supra, at 177 (87 S Ct at 910, 17 L Ed 2d at 850). In exercising its discretion, the union has the power “to sift out frivolous grievances, to abandon processing of a grievance which it determines in good faith to be meritless, and to settle disputes with the employer short of arbitration”. Harris v. Chemical Leaman Tank Lines, Inc., supra, at 171. In so doing,
“the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and time-consuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved.” Vaca v. Sipes, supra, at 191 (87 S Ct at 917, 17 L Ed 2d at 858). Also see: Encina v. Tony Lama Company (WD Texas, 1970), 316 F Supp 239, 244.5
[75]*75However, this doctrine of fair representation does not confer on an employee the absolute right to press his grievance all the way through the last stage of the grievance procedure, as that procedure is made possible in the collective bargaining agreement. Vaca v. Sipes, supra, at 190-193 (87 S Ct at 916-918; 17 L Ed 2d at 857-859). Befusal of a union to take the grievance to arbitration does not per se amount to a breach of the duty of fair representation. Lomax v. Armstrong Cork Company (CA 5, 1970), 433 F2d 1277, 1281. To allow an individual employee to compel arbitration of his grievance, regardless of its merit, would weaken and undermine the collective bargaining process. Vaca v. Sipes, supra, at 191 (87 S Ct at 917, 17 L Ed 2d at 858). The employee, therefore, is subject to the union’s discretionary power to settle or even to abandon a grievance, so long as the union does not violate its duty of fair representation. Brandt v. United States Lines, Inc. (SD NY, 1964), 246 F Supp 982.
Consequently, the aggrieved employee who challenges a union’s actions is obligated to demonstrate more than that his grievance, viewed with hindsight, had merit. Vaca v. Sipes, supra, at 193-195 (87 S Ct at 918, 919; 17 L Ed 2d at 859, 860); Gottschling v. Square D Company (ED Wis, 1969), 301 F Supp 1349, 1353. Bather, a breach of the statutory duty of fair representation is established only when the union’s conduct toward the complaining employee has been shown to be arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, at 190 (87 S Ct at 916, 17 L Ed 2d at 857). It is therefore essential to plaintiff’s claim that there should have been proof of “arbitrary or bad faith conduct on the part of the union in processing his [76]*76grievance”. Vaca v. Sipes, supra, at 193 (87 S Ct at 918, 17 L Ed 2d at 859). Plaintiff carries a strong burden of proof, and this necessitates a showing that the union’s motivation was improper or hostile.6 Field v. Local 652, UAW AFL-CIO (1967), 6 Mich App 140. Accord: Hardcastle v. Western Greyhound Lines, (CA 9, 1962), 303 F2d 182; Turley v. Hall’s Motor Transit Company (MD Pa, 1969), 296 F Supp 1183, 1187; St. Clair v. Local Union No. 515 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (CA 6, 1969), 422 F2d 128, 132; Simberlund v. Long Island R. Co. (CA 2, 1970), 421 F2d 1219, 1224.
Here, the proofs considered in the light most favorable to plaintiff showed that he had been involved in an altercation with a female supervisor and that on two previous occasions he had received [77]*77warning letters. A thorough investigation was made by the union, after which, plaintiff was given numerous opportunities to present his version of the incident. Several union hearings and re-hearings were held before the union decided not to press the grievance to arbitration.
Aggrieved employees should not equate lack of success with bad faith representation. Acuff v. United Papermakers and Paperworkers (CA 5, 1968), 404 F2d 169, 171.
The test is not success or failure, or whether the grievance had merit, but rather whether the union breached its duty of fair representation by dealing with plaintiff’s claim in a bad-faith or arbitrary manner. The evidence introduced at trial falls short of this test. Bieski v. Eastern Automobile Forwarding Company (CA 3, 1968), 396 F2d 32, 37; Watson v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (CA 5, 1968), 399 F2d 875, 880; Fabian v. Baltimore and Ohio R. Co. (ND Ohio, 1970), 320 F Supp 573.
Nowhere in the record are we able to find evidence that the union acted arbitrarily or in bad faith. Instead, this record rebuts plaintiff’s contentions. The record shows the union pursued plaintiff’s grievance vigorously, and that it was only after a complete investigation of the facts surrounding plaintiff’s discharge that the union took the position not to further act on the grievance. The decision not to demand arbitration does not amount to an abuse of the union’s discretion.7 Plaintiff failed to [78]*78advance evidence that this position was taken dishonestly and with hostility. From onr review of the record, we conclude that the union acted “upon wholly relevant considerations, [and] not upon capricious or arbitrary factors”. Humphrey v. Moore, (1963), 375 US 335, 350 (84 S Ct 363, 372; 11 L Ed 2d 370, 382).
Since there is insufficient proof to support the verdict, the judgment of the trial court is vacated and this case is remanded with direction to take proceedings not inconsistent herewith.
Reversed and remanded.
V. J. Brennan, J., concurred.