Bagsby v. Lewis Bros.

RYAN, Circuit Judge,

concurring.

Although I agree with the court’s conclusion, I do not entirely agree with the rationale in support of it and I write separately to express my understanding of the case.

My brother has written that the collective bargaining agreement provides for no written complaint in automatic discharge cases. That conclusion rests on three grounds:

First, that the court “should hesitate to argue with the interpretation agreed upon by both parties to the agreement” — the union and the company;

Second, the structure of Article VIII of the collective bargaining agreement creates a procedural pattern for discharge cases and an exception for automatic discharges —this, the court feels, implies that no written complaint or response time is necessary in automatic discharges; and

Third, because the lack of a written complaint does not deprive an automatically discharged employee of a meaningful opportunity to seek redress, the collective bargaining agreement has struck a balance between the company’s need to expeditiously eliminate egregious behavior and the employee’s right to be treated fairly by allowing the company to dispense with a written notice and reply period while holding the company to a higher standard of proof in any subsequent grievance procedure.

When interpreting contracts, courts look to the objectively manifested intent of the parties. Courts do not look to the subjective intent of the parties to the agreement. Thus, this court must interpret the contractual language without reference to the self-serving, after-the-fact, assertions by the union and the company as to what their subjective intent was. Dill v. Greyhound Corp., 435 F.2d 231, 237-38 (6th Cir.1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1622, 29 L.Ed.2d 122 (1971), upon which the court relies for the proposition that we must hesitate to disagree with an interpretation agreed upon by the union and the company, is inapposite. Dill interpreted the contract objectively. The court’s reference to the concurrence between the union and the company as to the interpretation of the contract did not concern the court’s interpretation of the contract. Rather, the fact that the company and the union agreed on an interpretation was persuasive only as to whether the union’s failure to take the grievance to arbitration was reasonable. Thus, the agreement between the company and the union went to the union’s good faith rather than to whether the parties breached the collective bargaining agreement.

Furthermore, in this case the parties actually did not agree upon an interpretation of the contract. The union asserted, as does the majority here, that the collective bargaining agreement did not require any notice to be given in automatic discharge cases. The company, on the other hand, felt, as did the district court, that the reasonable construction to give the contract, while retaining the differentiation between automatic discharge cases and regular discharge cases, was that the written notice can be given subsequent to the discharge in automatic discharge cases while it must be *804provided prior to discharge in regular discharge cases (Lewis Bros.’s brief p. 15). The company argues that although the agreement required notice subsequent to the discharge, they did indeed provide that written notice.1

The second ground upon which the court relies, the structure of Article VIII, also does not support its construction of the contract. It is true the first three sentences of Article VIII establish a general procedural pattern for discharge cases — a written complaint followed by a ten-day response period and discharge. However, the most reasonable interpretation of the automatic discharge exception is not that automatic discharge cases require no written notice, but rather that automatic discharge cases require only written notice subsequent to discharge. In this way, the company is allowed to expeditiously eliminate egregious behavior, while the employee is still provided with a written complaint on the basis of which he can effectively respond in a grievance.

The third ground upon which the court relies, that the availability of the grievance procedure means that the lack of the written complaint does not deprive the discharged employee of a meaningful opportunity to seek redress and, therefore, that no notice is required under the agreement, is really a non sequitur. The very same grievance procedure upon which the court is relying to explain its conclusion that no written complaint need be given to automatically discharged employees serves as the grievance process for regularly discharged employees as well. The collective bargaining agreement requires a written complaint so that the discharged employee, whether regularly discharged or automatically discharged, will have some document from which he can appropriately prepare himself for the grievance procedure, and to which he can effectively respond during the grievance process. The question of whether the discharge is automatic rather than regular only affects the time of the written notice, not the requirement that one be given.

Although I disagree with the court’s interpretation of the contract, I agree that the district court erred. The district court should have dismissed Bagsby’s complaint because he failed to exhaust the grievance-arbitration provisions of the collective bargaining agreement. “[FJederal labor policy requires that 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). The employee is then bound by the results of the grievance-arbitration procedure, subject to narrow review by this court, unless the employee proves the union did not fairly represent him. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). See also Sturgeon v. Airborne Freight Corp., 778 F.2d 1154 (5th Cir.1985).

Bagsby correctly identifies an exception to the rule that an employee must exhaust the contractual remedies before bringing suit on the collective bargaining agreement. In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Supreme Court held:

“[T]he employee may seek judicial enforcement of his contractual rights ... if ... the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, ... the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance____ [The employer’s breach could have been] remedied through the grievance process to the employee-plaintiff's benefit were it not for the union’s breach of its statutory duty of fair representation to the employee.”

Id. at 185, 87 S.Ct. at 914 (emphasis in original). Cf. Adkins v. International Union of Electrical, Radio & Machine Work*805ers, 769 F.2d 330 (6th Cir.1985); Poole v. Budd Co., 706 F.2d 181 (6th Cir.1983). In this case, it was not the union that had the sole power to invoke the higher stages of the grievance procedure, rather, Bagsby, the employee, had the power to do so. Further, it was not the union’s wrongful refusal to process the grievance, rather, it was Bagsby’s wrongful refusal to do so and to cooperate with the union that prevented the alleged breach by the employer from being remedied through the grievance procedure.

Admitting that the union did not stymie the grievance process after he had initiated it, Bagsby argues that nonetheless he need not exhaust his contractual remedies through the grievance-arbitration process as required by Republic Steel, where taking the matter to grievance would have been futile. Exhaustion of intraunion remedies is unnecessary where the union member is challenging the conduct of the very same officers who would hear the grievance — because the effort would be futile. Fruit & Vegetable Packers & Warehousemen Local 760 v. Morley, 378 F.2d 738 (9th Cir.1967). See also Calagaz v. Calhoon, 309 F.2d 248 (5th Cir.1962). However, where the grievance-arbitration would occur through the collective bargaining agreement, a showing of hostility or malice on the part of the union, and therefore a “clear and positive” showing of futility, must be made before the court will excuse an employee’s failure to exhaust. Miller v. Chrysler Corp., 748 F.2d 323, 326 (6th Cir.1984); Dill, 435 F.2d at 238. No such “clear and positive showing” of futility has been made here. See also Anderson v. Ideal Basic Indus., 804 F.2d 950 (6th Cir.1986).

Additionally, before Bagsby can charge the union with a breach of its duty of fair representation, Bagsby must have afforded the union an opportunity to represent him through the grievance process. Bsharah v. Eltra Corp., 394 F.2d 502 (6th Cir.1968). In this case, Bagsby never instituted step three of the grievance process, and never sought arbitration; rather, he relied upon his attorney and refused to cooperate with the union’s attempt to represent him. Bagsby also precluded the union from proceeding with step two of the grievance process by failing to answer any of the union’s questions concerning the charges against him. Bagsby thereby refused to permit the union to adequately represent him.2

Bagsby has, in the past, filed three grievances against the company which have been successfully processed by the union. He cooperated in processing those grievances. This is substantial evidence of the union’s good faith — that it has no hostility towards Bagsby and has properly filed and pursued his grievances in the past — and demonstrates that Bagsby knew the grievance process and, by intentionally deviating from it and relying upon his lawyer’s assistance rather than the union’s, intentionally blocked the processing of his own grievance and precluded the union from adequately representing him.

Bagsby’s failure to institute the dispute resolution mechanism of the collectively bargained agreement bars his action. Thus, I concur in the majority’s conclusion that the decision of the district court must be reversed.

. The district court’s implicit finding that the Department of Employment Security Form did not satisfy the written complaint requirement of Article VIII was not clearly erroneous.

. A further problem with Bagsby’s suit is that he instituted stage one and stage two of the grievance process solely as to the discharge. However, Bagsby does not allege that the union failed to adequately represent him in the grievance procedure regarding the discharge claim. Rather, he argues that the union failed to represent him adequately because the union failed to require the company to abide by the collective bargaining agreement’s requirement of a written complaint. However, Bagsby never filed a grievance against the company for failing to provide the written complaint. Indeed, he never asserted this was a violation of the collective bargaining agreement until moments before the stage-two meeting concerning his termination. Instead of affording the union an opportunity to represent him concerning the company’s failure to provide a written notice of discharge, five months after the discharge, never having spoken with the union representatives since the time of the abortive stage two discussion of the discharge, Bagsby filed a lawsuit.