FEIKENS, District Judge.
Plaintiff sues Ford Motor Company, the International Union — UAW, and Local 600 — UAW alleging racial discrimination, unfair representation, and violation of the collective bargaining agreement. Defendants move to dismiss, or in the alternative to strike certain demands in the complaint. Inasmuch as it has been necessary to go beyond the pleadings, the motion has been treated as one for summary judgment pursuant to Rule 56.
The relevant events are essentially undisputed. In the spring of 1971 a blast furnace in the slab mill of the rolling mill in which plaintiff worked as an electrician was closed down for repairs. In preparation for the shutdown, officials of Ford and Local 600 met in late 1970 to make arrangements for layoffs and bumping rights. The resulting agreement, dated December 21, 1970, and two supplementary letters of understanding, dated February 16 and March 4, 1971, provided that approximately sixteen low seniority electricians in the rolling mill were to be temporarily laid off. Those with higher seniority were to exercise their seniority within the rolling mill so as to remain on the job during the shutdown.
As was noted by the International Union's Public Review Board, in the course of considering plaintiff's appeal from the union's failure to prosecute his grievance, plaintiff "has displayed unusual energy and resourcefulness in attempting to right the wrong he believes he has suffered. He has written to Ralph Nader, filed charges with the NLRB,
Having failed to obtain relief in any other forum, plaintiff instituted an action in this court (docket no. 39879) charging defendants with violating the terms of the Ford-UAW collective bargaining agreement. He later filed a second suit (no. 40129) alleging racial discrimination and breach of the duty of fair representation. All charges related to the events surrounding the furnace shutdown. The two actions were subsequently consolidated and have, for all practical purposes, been treated as a single case. The defendants' motions and this opinion are directed at all three of plaintiff's claims for relief. Singular references, particularly those made to "the complaint," should be read accordingly. Likewise, although the International Union and Local 600 were individually named as defendants, their interests and the bases for their liability are virtually identical. They have, therefore, been considered as essentially a single entity, referred to simply as "the union".
Plaintiff advances three distinct theories of liability. He sues the company for breach of contract, claiming that the procedure whereby he was forced to continue working rather than being allowed to take a layoff was a violation of the collective bargaining agreement (Count I). He alleges a concomitant breach by the union of its duty of fair representation because of its participation in that arrangement, and (perhaps) because of its failure to prosecute plaintiff's grievance (Count II). Finally, plaintiff charges that the defendants conspired to discriminate against plaintiff and others in the company's hiring, promotional, and seniority systems in violation of Title VII of the 1964 Civil Rights Act,
Counts I and II
Although never specifically cited by plaintiff, it appears that the charges of breach of contract and unfair representation are brought under 29 U.S.C. § 185 (Section 301 of the Labor Management Relations Act of 1947). Defendants question plaintiff's right to sue under Section 301 on a variety of grounds.
1. Plaintiff's Right to Sue Under Section 301. a. Effect of NLRB Jurisdiction — It is well established that actions under Section 301 are maintainable even where the subject matter would
b. Individual Employee's Right to Sue—Individual employees may bring suit to vindicate rights conferred upon them by the collective bargaining agreement, Smith v. Evening News Ass'n, supra, 371 U.S. at 198-200, 83 S.Ct. 267, and for violations of the union's statutory duty of fair representation. Vaca v. Sipes, supra; Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971).
c. Exhaustion of Contractual Remedies—As a general rule, "individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (emphasis in original, footnote omitted). Such efforts are not required, however, if the parties did not intend the grievance and arbitration procedure to be the exclusive remedy under the contract,
Plaintiff's allegation in the complaint that he has exhausted his contractual remedies stands uncontradicted on this record. Plaintiff filed his own grievance after he was unable to persuade the union to do so on his behalf. That grievance was denied at the first stage, and the union refused to carry it any further. Plaintiff pursued his intra-union remedies in an attempt to reverse this decision, but was unsuccessful.
Article VII, Section 1 of the Ford-UAW collective bargaining agreement provides in part as follows:
The right of an individual to present his own grievance provided for in Section 2 is limited to its initial submission to the foreman (first stage). After disallowance by the foreman, it may be prosecuted further only with union cooperation. That cooperation was denied plaintiff by his committeeman, the Grievance Committee of the Local 600 General Council, the Local Executive Board, the General Council, the International Executive Board Appeals Committee, and the International Union's Public Review Board. Plaintiff's efforts to bring his case before the UAW Convention Appeals Committee were unsuccessful.
Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967) (emphasis in original). Plaintiff meets this standard and is entitled to sue under Section 301.
This conclusion is confirmed by another paragraph of Article VII, Section 1:
2. Substance of Plaintiff's Claims Under Section 301. a. Union's Breach of the Duty of Fair Representation—Although plaintiff is properly in court, there are serious doubts as to the viability of his claims under Section 301.
The employee's right to fair representation does not, however, include an absolute right to have his grievance taken to arbitration, even if it is ultimately shown to be meritorious.
The complaint charges that the union has acted "discriminatorily and arbitrarily" in adhering to "the unlawful and discriminatory practices and policies complained of herein." The rest of the complaint is not, however, very illuminating as to just what are the "practices and policies complained of," nor as to how they are impermissibly discriminatory. There is an explicit allegation of racial discrimination, but its viability is dependent on that of Count III.
The only other possibilities are personal animosity and nepotism. Although it appears that plaintiff did not get along well with certain local officials, this hardly accounts for the consistent rejection of his appeals at all levels of the union and by the Public Review Board (which has exclusively nonunion members). In any event, personal frictions are not mentioned in the complaint, and this court is reluctant to imply them as a basis of plaintiff's case without more of a foundation than its own speculation.
Plaintiff has in the past been somewhat more explicit about the possibility that relatives of local officials received favored treatment by virtue of their membership in the group that was laid off. He does allege in the complaint that all sixteen of the employees placed on temporary layoff status were related to company and union officials, though he had previously been able to name only two who were so related. He has never been able to produce even a shred of evidence of any intent to discriminate in their favor, however, and his claim has been consistently rejected. It appears to a certainty that plaintiff cannot meet the evidentiary standard required for proof of unfair representation on grounds of nepotism. This count must therefore stand or fall upon his claims of racial discrimination.
b. Violation by the Company of the Collective Bargaining Agreement — Plaintiff alleges that the agreements of December 21, 1970, and of February 16 and March 4, 1971, and the procedures implemented pursuant thereto violated three provisions of the collective bargaining agreement: Article X, Section 9; Article X, Section 12; and Article VIII, Section 21. The first of these prohibits, inter alia, racially discriminatory application of the contract. Like the charges of unfair representation, this is dependent upon the viability of plaintiff's allegations of discrimination under Count III. The second provision merely states that the parties may not, in the guise of clarifying the language of the document, alter its substance. It is Article VIII, Section 21,
Section 21 is applicable exclusively to "deviations from seniority" within the meaning of subsection (b) which occur during a "temporary layoff" within the meaning of subsection (a). It is only in those limited circumstances that the parties are required to follow the procedures outlined in Section 21. The arrangements of which plaintiff complains meet neither of the preconditions.
Subsection (a) defines a temporary layoff, for reasons other than model changes, as one not exceeding twelve working days. Plaintiff argues that because the reduction in force and layoffs in the slab mill lasted more than two months, local company and union officials were without power under Section 21 to approve of the arrangements actually made. The argument is technically correct, but proves merely that the section is irrelevant as applied to the events in question. It does not provide for any contingency other than "temporary layoffs," and by its terms therefore cannot operate as a restriction of any sort upon a layoff which because of its length was not "temporary".
Furthermore, it appears that there was no deviation from seniority such as is contemplated by Section 21. Subsection (b) states that "[i]n the event of a temporary layoff" the company may lay off employees as their work is completed, irrespective of their group seniority. However, there is absolutely no indication here that the layoffs were made according to work completed rather than by seniority. Indeed, plaintiff admits that the sixteen employees laid off were those with the lowest seniority, and that those who continued to work were those with highest seniority. It may be that under certain circumstances a higher seniority employee might have the right to choose a layoff in preference to a job transfer,
Plaintiff seems not to realize that seniority per se confers no rights whatsoever on the employee. Higher seniority entitles him to priority in work related matters only to the extent that the collective bargaining agreement
Of course, once certain rights are established in a currently operative collective bargaining agreement, the parties may not, by supplementary agreements or otherwise, deny them to the individual worker-beneficiaries in contravention of that agreement.
Count III—Racial Discrimination
There is no cause of action stated here under 42 U.S.C. § 1983. As an essential element of his claim for relief, plaintiff must allege that he was deprived of a constitutional right "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory."
Although a few courts have expressed the opinion that 42 U.S.C. § 1981 is also limited to acts engaged in under color of state law,
A more serious problem is posed for the plaintiff under both Title VII and Section 1981 by the fact that he complains of discrimination directed against blacks, but is himself white. It is conceivable that a white person might be incidentally injured by such discrimination. If he were a "person claiming to be aggrieved,"
It does not follow, however, that a white plaintiff is qualified under Rule 23(a)
Of course plaintiff may still maintain his individual claim if it is properly framed and supported by a modicum of evidence. After careful consideration I find that it is neither. The language of the complaint is vague, conclusory, and thoroughly disingenuous. Plaintiff complains about the arrangements made for the shutdown, but does not explain how the facially neutral criteria employed there were in esse racially discriminatory. His broad allegations of discrimination are nothing more than bald and unilluminating conclusions of law. It seems that great care was exercised to avoid revealing who, other than plaintiff, was disadvantaged; what acts, if any, demonstrated racial discrimination; and how those acts justify that inference. The vague suggestions and innuendo of the complaint are wholly unacceptable.
Falling with Count III are the remaining contract and fair representation claims which were also bottomed on the charges of racial discrimination. The remainder of defendants' arguments need not be considered. A summary judgment on all counts shall be entered in favor of defendants.
An appropriate order may be presented.
Both sides have submitted a variety of documents, all of which have been read and considered for purposes of this motion, and both have been timely apprised of this court's intention to treat the motion as one for summary judgment. In addition, the union's motion to dismiss specifically requests the court to treat this as a motion for summary judgment should it become necessary to consider matters outside the pleadings.
(a) Definition and Applicability
(b) Right to Deviate from Seniority
(c) Discussions After 5 Days
(d) Local Negotiations
(e) Limitation on Use
Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (footnote omitted).
Although the requirement of standing serves to limit the sort of grievance which would be judicially cognizable, an "incidental" injury satisfies that requirement as well as the statutory language. "The use in 42 U.S.C. § 2000e-5 of the language `a person claiming to be aggrieved' shows a congressional intention to define standing as broadly as is permitted by Article III of the Constitution." Hackett v. McGuire Brothers, Inc., 445 F.2d 442, 446 (3d Cir. 1971). As to the elements of standing, see Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L. Ed.2d 636 (1972); Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
An even more extreme position than is adopted here has been taken in several cases where the statute was held applicable to discrimination directed against whites. See Carter v. Gallagher, 452 F.2d 315, 325 (8th Cir. 1971) ; Gannon v. Action, 303 F.Supp. 1240, 1244 (E.D.Mo.1969), aff'd in part and rev'd in part on other grounds, 450 F.2d 1227 (8th Cir. 1971); Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, 899 (E.D.Mo.1969); Kentucky v. Powers, 139 F. 452, (Cir.Ct.E.D.Ky.1905), rev'd on other grounds, 201 U.S. 1, 26 S.Ct. 386, 50 L.Ed. 633 (1905).
Among the practices complained of are: