HARRY PHILLIPS, Circuit Judge.
This is an interlocutory appeal under 28 U.S.C. § 1292(b) from the order of the district court denying defendants' motions for summary judgment.
Plaintiff, an employee of General Motors, had acquired certain seniority rights as a journeyman tinsmith. He took medical leave in 1957 because of a physical disability. In 1958 his reinstatement application with General Motors was denied after a medical examination,
The collective bargaining agreement between General Motors and the United Automobile Workers provided for a detailed four-step grievance procedure which terminated in final and binding arbitration of employee grievances before either an impartial umpire, or by a mutually agreed upon independent physician, depending upon the type of grievance filed.
Step one of the grievance procedure required the presentation of the grievance to the shop foreman; step two required the grievance to be referred to the shop committee; step three was an appeal to the corporation and the international union; and step four was an appeal to an impartial umpire.
Plaintiff's grievance remained at the third step of the grievance procedure until 1961. Following a discussion of the grievance at the Appeal Committee and management's refusal to accede to the demands made therein, the Union made a timely appeal of the case to the impartial umpire. Thereafter at the request of the Union the grievance was returned to the second step of the grievance procedure, ultimately reaching the umpire stage in December 1961.
In September 1961 plaintiff had filed suit against General Motors in the district court under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), seeking to join the international and local Unions as involuntary plaintiffs. In that action plaintiff demanded arbitration in accordance with the collective bargaining agreement. The district court dismissed that suit in January 1962 for lack of jurisdiction, on the ground that the grievance procedure prescribed by the collective bargaining agreement had not yet been exhausted.
In April 1962, in accordance with the provisions of the collective bargaining agreement, the grievance was submitted to an independent physician, who was mutually acceptable to General Motors and the Union, for a final and binding determination as to whether plaintiff was able to perform the duties of the journeyman tinsmith classification, his former position.
Based upon his examination of plaintiff, the physician found that plaintiff was unable to perform the duties of this job classification. The Union withdrew the grievance of plaintiff at that time.
Plaintiff then brought this suit demanding $350,000 in damages against General Motors and the international and local Unions, alleging (1) that the referral of his grievance to the arbitrator was a sham since it was not reasonably contemporaneous with his application to return to work and that the question submitted to the arbitrator was not the same question as presented by the grievance; (2) that defendant Unions breached their duty to process plaintiff's grievance promptly, diligently and in good faith; and (3) that defendant General Motors breached plaintiff's rights under the collective bargaining agreement by failing, refusing and neglecting to permit plaintiff to resume his employment. The district court denied the motions of General Motors and the Unions for summary judgment. This appeal under 29 U.S.C. § 1292(b) ensued.
1) The Arbitration Decision
The principal contention of plaintiff is that the question presented in the grievance which he filed in 1959 was not the same question which was presented to the impartial physician in 1962. He asserts that the question is whether he was physically able to perform the duties of his job classification and therefore entitled to reinstatement in 1958, whereas the question presented to the physician was whether he was able to return to work in 1962, the time of the submission of the question to arbitration. The Unions and General Motors take the position that the decision of the arbitrator is binding and conclusive upon plaintiff and that this
As was said in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403:
Further "[a]rbitration is a stabilizing influence only as it serves as a vehicle for handling any and all disputes that arise under the agreement." (Emphasis added.) 363 U.S. at 567, 80 S.Ct. at 1346.
The Court further said:
As said in Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 617, 13 L.Ed.2d 580. "If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement."
To like effect see Local 174 Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593.
With regard to the finality of an arbitrator's award the Supreme Court has stated that:
Paragraph 43(b) of the collective bargaining agreement between General Motors and the Unions provide that the arbitrator's decision (in this case an independent physician's decision), "with respect to whether the employee is or is not able to do a job to which he is entitled in line with his seniority shall be final and binding upon the Union, the employee involved and the Corporation."
The Memorandum of Understanding between General Motors and the Union under which the grievance was submitted to arbitration in the present case was in conformity with Section 43(b) of the collective bargaining agreement (footnote 3). Under this Memorandum the arbitrator was authorized to make a determination as to plaintiff's physical ability to perform the job of journeyman tinsmith either as of the date of the examination or as of November 11, 1958, or July 25, 1960.
The arbitrator found that: "this man is not a candidate for unlimited heavy manual labor." When asked for a clarification, he stated that he had carefully reviewed the Memorandum of Understanding and the physical requirements of the "tinsmith job" and reaffirmed his former conclusion as to plaintiff's inability to do that job.
Under the foregoing authorities the decision of the arbitrator is binding and conclusive upon plaintiff and the issue decided by the arbitrator cannot be relitigated in this proceeding.
2) The Duty of Fair Representation
It is now well settled that a "bargaining representative of employees has the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against any employee or group of employees." Trotter v. Amalgamated Ass'n of Street Electric Railway Employees, 309 F.2d 584, 586 (C.A. 6), cert. denied, 372 U.S. 943, 83 S.Ct. 936, 9 L.Ed. 2d 968. To like effect see Steele v. L. & N. R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Mount v. Grand International Brotherhood of Locomotive Engineers, 226 F.2d 604 (C.A. 6), cert. denied, 350 U.S. 967, 76 S.Ct. 436, 100 L.Ed. 839; Ostrofsky v. United Steelworkers, 171 F.Supp. 782 (D.Md.), aff'd 273 F.2d 614, cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732.
Similarly this court has held:
See also Hildreth v. Union News Co., 315 F.2d 548 (C.A. 6), cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59; Union News Co. v. Hildreth, 295 F.2d 658 (C.A. 6).
A Union has "the authority, acting in the collective interest of those whom it represented, to agree with the defendant [employer] on necessary corrective measures to be taken without such action being treated as a breach of the collective bargaining agreement." Hildreth v. Union News Co., 315 F.2d 548, 551 (C.A. 6), cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59.
Whether a bargaining representative has acted fairly, impartially and without hostile discrimination depends upon the facts of each case. Pekar v. Local 181, International Brewery Workers, 311 F.2d 628 (C.A. 6), cert. denied, 373 U.S. 912, 83 S.Ct. 1303, 10 L.Ed.2d 414; Trotter v. Amalgamated Association of Street Electric Railway Employees, 309 F.2d 584 (C.A. 6), cert. denied, 372 U.S. 943, 83 S.Ct. 936, 9 L.Ed.2d 968.
The allegations of a complaint alleging the breach of a Union's duty of fair representation must contain more than "conclusory statements alleging discrimination. In particular plaintiffs must make a showing that the action or inaction of the statutory representative complained of was motivated by bad faith, for the gravamen of the rule is `hostile discrimination'." Gainey v. Brotherhood of Railway Employees, 313 F.2d 318, 323 (C.A. 3). "[C]onclusory words * * * without a concomitant showing of lack of good faith [does] not set forth a claim." Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (C.A. 9), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229. See also Colbert v. Brotherhood of Trainmen, 206 F.2d 9 (C.A. 9), cert. denied, 346 U.S. 931, 74 S.Ct. 320, 98 L.Ed. 422; Ostrofsky v. United Steelworkers, 171 F.Supp. 782 (D. Md.) aff'd 273 F.2d 614, cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732.
Since this case is before this court on defendants' motions for summary judgment, we are not limited to the allegations of plaintiff's complaint. Cf. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. We find that:
This finding disposes of the claims against General Motors as well as the claims against the defendant Unions. Ostrofsky v. United Steelworkers, 171 F.Supp. 782, aff'd 273 F.2d 614, cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed. 2d 1732. We therefore hold that in light of the foregoing, defendants' motions for summary judgment should have been granted.
Reversed and remanded.
"43 In the event of failure to adjust the case at this point, it may be appealed to the impartial Umpire, providing it is the type of case on which the Umpire is authorized to rule.
* * * * *
"43(b) Any case appealed to the Umpire involving a continuing refusal of Management to return an employee to work from sick leave of absence which has continued for twenty-six (26) weeks or longer, by reason of the medical findings of a physician or physicians acting for the Corporation, will be reviewed between the Corporation and the International Union, if such findings are in conflict with the findings of the employee's personal physician with respect to whether the employee is able to do a job to which he is entitled in line with his seniority. Failing to resolve the question, the parties may by mutual agreement, refer the employee to a clinic or physician mutually agreed upon whose decision with respect to whether the employee is or is not able to do a job to which he is entitled in line with his seniority shall be final and binding upon the Union, the employee involved and the Corporation. The expense of such examination shall be paid one-half by the Corporation and one-half by the Union. Any retroactive pay due the employee shall be limited to a period commencing with the date of filing of the grievance, or the date the employee became able to do a job to which he is entitled in line with his seniority whichever is the later."