MURRAY, District Judge.
I. The Facts
Plaintiff Local Union 90 ("the Local") is affiliated with defendant American Flint Glass Workers' Union (AFGWU, or "the International"), and represents employees of the other three defendants ("the Companies"). The dispute centers around the interpretation of the contract negotiated between the AFGWU and the Companies, and applicable between 1968 and 1971. Trial was held on the plaintiffs' claims but defendants' counterclaims are pending.
The Baltimore area mold-makers were, prior to 1968, paid on a different scale from similar workers elsewhere. Base pay here was lower, but the disparities were rectified through the payment of "skill adjustments," which were based on the worker's years of experience. With the adjustments, Baltimore wages were in rough parity with nationwide scales.
One issue in the 1968 contract negotiations was the equalization of base pay throughout the country. The content and effect of the resulting contract are subject to dispute. The defendants argue that it abolished the "skill adjustments" in the Baltimore area. The plaintiffs argue that a clause (Article 28.1) preserving "all written local agreements that are presently recognized by a manufacturer and a local union" applies to the "skill adjustment" agreements. On that basis, they claim an additional 20¢ per hour. Defendants claim that these were "supplemental" agreements, and that "local agreements" covered working conditions only.
Defendants also assert that the plaintiffs have not exhausted the grievance procedures established by the contract, thus barring resort to this Court. It is this contention on which attention will be focused.
Article 25 of the contract sets out the grievance procedures:
The parties have stipulated that the Local never filed what could be chracterized as a grievance under this procedure. Donald Owings testified that he and George Beach, then President of the Local, complained verbally to a foreman at the Maryland Glass Corporation and had a meeting with the "labor relations man" on the matter, at which the corporation rejected the Local's contention that the "skill adjustments" should be paid. This meeting took place toward the end of August, 1968.
At a later point, counsel for the Local sent two letters to the Maryland Glass Corporation, but in each instance the response of the corporation was that the Local had not met the procedural requirements of Article 25. (Plaintiff's Exhibits 15; Defendant Companies' Exhibits 9, 10, 11 and 12.)
There was also testimony about communications between Mr. Beach and George Parker, President of the International. The first such communication was a telephone call placed on the same day as the meeting with the labor relations man at the Maryland Glass Corporation (testimony of Donald Owings). Next, on September 21, 1968, Mr. Beach sent a letter to Mr. Parker setting out the basis of the Local's demand for an additional twenty cents an hour (Plaintiff's Exhibit 3). Mr. Parker responded with a letter on October 7, 1968, stating that the Local has "no cause for a grievance" (Plaintiff's Exhibit 4A). In late July 1970, Mr. Parker received a copy of the second company response to the Local's counsel (Plaintiff's Exhibit 15). The International President then wrote William Fontz, the corresponding secretary of the Local, seeking elucidation (Plaintiff's Exhibit 16), which he received by letter from Mr. Fontz (Plaintiff's Exhibit 11). Mr. Parker then on August 7, 1970 reiterated his conclusion that the Local had "no cause for a grievance" (Plaintiff's Exhibit 12).
Two other pieces of evidence are relevant here, for reasons that will emerge later. The first is a letter dated September 25, 1968, from J. Thomas Rimer to Mr. Parker (Plaintiff's Exhibit 4B). At that time, Mr. Rimer was the Director of Labor Relations for the Glass Container Manufacturers Institute (the collective bargaining agent for some of the Companies). The letter was a discussion of the status of any supplemental agreements under the newly signed contract. Although it does not specifically mention the Local 90 agreement, its conclusion is that no such agreements remained in force under the new contract.
The second piece of evidence is the description by two witnesses of a meeting at the 1971 International Convention. The meeting took place in a room off the convention floor, and was attended by, among others, Mr. Parker, Richard Colasurd (counsel for the International), and Benjamin Cort (an International officer who had participated in the negotiation of the 1968 contract and who had explained it to a meeting of Local 90 during the ratification process). The witnesses who took part in the meeting were John Ochlech and Mr. Fontz. Both testified that Mr. Parker took them aside to urge them to drop the present suit; according to Mr. Fontz, Mr. Cort added that he might have erred in not bringing up the Baltimore supplemental agreement at the contract negotiations. Again according only to Mr. Fontz, Mr. Cort went on to say that he would testify that he had "negotiated out" all the supplements.
II. The Law and its Application Here
In weighing these facts, the following propositions of law are applicable.
The fundamental decisions concerning whether an employee must exhaust his contractual grievance remedies are, of course, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)
Vaca, 386 U.S. at 185-186, 87 S.Ct. at 914. When a member does not meet this second exception, Vaca makes clear that a union decision not to press a grievance will not be reexamined in court, even if the member has done all he can on his own.
Glover set out what was termed a third exception to the Vaca rule. The case was a suit by employees alleging a racially discriminatory collusion between the employer and the union. The defendants argued that the plaintiffs had not exhausted their contractual remedies; Justice Black met the argument by saying:
393 U.S. at 330-331, 89 S.Ct. at 551.
The relationship between the second exception in Vaca and the exception set up by Glover has not been clear. Both exceptions arise where the union has violated its duty of fair representation, so that the need for the Glover exception has been obscure. Courts have made varying observations concerning the meaning of Glover.
In Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870 (3rd Cir. 1972), the Court stated:
464 F.2d at 875. The facts of Smith, as well as of Derr v. Bright,
Other courts, less expansive in reading Glover, have held that the case's holding is restricted to suits alleging racial discrimination. Fulsom v. United-Buckingham Freight Lines, Inc., 324 F.Supp. 135 (W.D.Mo.1970); Bowen v. Lockheed-Georgia Co., 309 F.Supp. 1210, at 1215 (N.D.Ga.1970).
Still others have relied on the fact that the plaintiffs in Glover had on previous occasions petitioned the union for help, to no avail, making clear the futility of further attempts. Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local 14, 453 F.2d 1018, at 1027 (9th Cir. 1972); Waters v. Wisconsin Steel Works of International Harvester, 427 F.2d 476, at 489-490 (7th Cir. 1970). Closely related to this view is the interpretation that the Glover exception arose from the fact that the employer and the union were charged with a pattern of collusion and conspiracy breaching the union's duty of fair representation; the collusion was the gravamen of the complaint and would have been the gravamen of any grievance. It would clearly be futile to expect the contractual remedies administered by the employer and the union to be responsive to such a claim. See Orphan v. Furnco Construction Corp., 466 F.2d 795, at 803 (7th Cir. 1972).
The difference between these two views is of limited significance, especially in the instant case. Further, while the Fourth Circuit has not had occasion to consider the precise meaning of Glover, it has indicated that it would concur in some formulation similar to the ones in Waters or Orphan:
In this view, the second exception set out in Vaca deals with the case where the union's unfair representation occurred first in the failure to process the grievance from which the suit arises, the grievance is with the employer alone, and there could have been no way of telling that the grievance would not be fairly treated until it was submitted.
Even in the absence of an indication that the Fourth Circuit will follow Waters or Orphan, this Court would find the approach of those cases more persuasive than the Third Circuit approach in Smith v. Pittsburgh Gage and Supply Co., supra. The more expansive rule of Smith appears to undercut the policies behind the Vaca exhaustion requirement, allowing an employee-union member to resort to the courts whenever he has obtained from a union official an expression that his grievance would not be pressed. Since the Supreme Court in Glover explicitly and approvingly referred to Vaca, the expansive interpretation of Smith seems unjustified.
On the other hand, the restriction of Glover to suits alleging racial discrimination seems unduly narrow. It is true that the facts of the case support such a construction, but the language of the passage already quoted seems to require a somewhat larger view. Justice Black refers to "a line of cases beginning with Steele v. Louisville & Nashville R. Co.," but in describing the "circumstances of the present case" expands them beyond the racial aspects to "the situation where the effort to proceed formally with contractual or administrative remedies would be wholly futile." Glover, supra, 393 U.S. at 330-331, 89 S.Ct. at 551.
In order to preserve both the expansion of Glover beyond its facts and its restriction within the bounds of Vaca, the approach suggested above seems the most acceptable.
The distinction is of importance to this case because plaintiffs have argued that their failure to exhaust contractual remedies is justified on the grounds of futility. If this Court were to accept the reading of Glover taken in Smith, the plaintiffs in this case would have excellent grounds for arguing that exhaustion of contractual remedies would have been futile and unnecessary.
However, under the formulation of Glover which the Court is disposed to adopt, the plaintiffs would, in order to come within the exception, have had to allege that the International's role in the origin of the grievance amounted to a violation of the duty of fair representation, or that on other occasions the International behaved unfairly. No such allegation has been made.
Consequently, the plaintiffs can only justify the failure to exhaust contractual remedies by showing that the International breached its duty of representation in the handling of the grievance itself. The Court finds as a fact that the International did not display bad faith in concluding that the Local had no grievance.
It would be barely possible to argue that the letter from Mr. Rimer shows collusion between the employers and the International, since it preceded and might arguably have influenced Mr.
It might also be argued that the statements of Mr. Cort at the 1971 Convention show ill will to the Local, and, by inference, bad faith in handling the grievance. Again, plaintiffs have not explicitly so argued, and the Court concludes that Mr. Cort's remarks do not in fact support the inference of bad faith. No evidence was offered to connect these remarks—made after the institution of this suit—to Mr. Parker's motives in handling the grievance.
A comparison of this case with Griffin v. International Union, United Auto Workers, 469 F.2d 181 (4th Cir. 1972) demonstrates how far this evidence is from substantiating a claim of bad faith. There, Judge Sobeloff ruled that a jury was justified in finding for the plaintiff, a union member who had been discharged from his job for brawling with a superior. Judge Sobeloff stressed three factors in holding the verdict permissible: first, that the unions had insisted on filing the grievance with the very man with whom the plaintiff had been accused of brawling; second that a vote by the membership to press the grievance had been disregarded; and third, that the union officer who handled the grievance was a good friend of the same company man. Similar factors are not in evidence here.
With regard to the exhaustion issue, plaintiffs have made the added argument that the grievance procedure was inappropriate for this dispute. It is true that since all the dispute settlement procedures are contractual, they must be resorted to only if the parties intended that they be used for the particular type of dispute. There are two factors which would seem to dictate a finding here that the parties did intend to submit claims like this one to the grievance machinery. First, there was testimony by Mr. Ochlech, on cross-examination, that previous disputes over wages had been submitted to Article 25 procedures, once at least in 1964, and perhaps at other times. Second, Article 25 refers only to "grievances" without defining the word; Subsection 3 excluded from the procedures disputes over "premium pay", a category not involved here. The law is clear that ambiguity of this variety is to be resolved in favor of requiring submission to grievance procedures. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 at 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); John Wiley and Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, at 915, 916-917, 11 L.Ed.2d 898 (1964); Local Union 24, International Brotherhood of Electrical Workers v. Hearst Corp., 352 F.2d 957 (4th Cir. 1965). The Court finds that this issue was appropriate for the contractual grievance procedures.
By finding that the grievance could have been submitted to contractually prescribed mechanisms, and that the International did not breach its duty
Vaca, supra, 386 U.S. at 191, 87 S.Ct. at 917.
The issue in this case is integrally related to the International's negotiating strategy; it would be destructive of the labor policy to allow a Local Union to second-guess the nationwide bargaining agent. In the absence of the special circumstances set out in Glover and Vaca, the International's judgment will not be reviewed by this Court.
For the foregoing reasons, it is this 25th day of April, 1974,
Ordered that plaintiff's Complaint be, and the same hereby is, dismissed.
In Derr v. Bright, the employee-plaintiff alleged that the union "acquiesced in the employer's wrongful action" and "did nothing to assist [another, similar grievant] in his attempt to rectify the situation."