Vavrek et al v. International Union United Automobile Aerospace & Agricultural Implement Workers of America et al
Filing
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OPINION AND ORDER granting 24 Union Defendants' Motion for Summary Judgment. Signed by Judge William C Lee on 08/13/13. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRIE VAVREK, ANGELA TOLLEY,
LINDA RAGSDALE, ANGELA MINNER,
ANN GEIGER, TINA SALINAS, EARLEEN
CARTER, POLLY TIBBS, JAQUIE JOHNSTON,
GORDON A. ROWE, LAWRENCE PUJOE,
DANNY WILDER, CINDY GONZALEZ,
JOSEPH MESZAROS, DENNIS WHITAKER,
CHERYL HARTMAN, JOSHUA TORRES,
DAVID JANSSEN, DAVID JENSEN, GLENDA
SCRUGGS, and MELISSA DAILEY,
Plaintiffs,
v.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE and
AGRICULTURAL IMPLEMENT WORKERS,
UAW; and UAW LOCAL #5,
Defendants.
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OPINION AND ORDER
Plaintiffs, twenty-one members of the Defendant Unions, believe they received the short end
of the stick after the Union and their employer negotiated a six year contract which cut their pay and
benefits while increasing pay and benefits for twenty-eight other member/employees. They filed
this suit asserting that the Union breached its duty of fair representation to them.
Presently, before the Court is Defendants International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, UAW, and its Local Union No. 5's
(“Union Defendants’”) Motion for Summary Judgment filed on February 1, 2013. Plaintiffs
responded on May 28, 2013 to which the Union Defendants replied on June 13, 2013. For the
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following reasons, the Motion will be GRANTED.
APPLICABLE STANDARD
Summary judgment is proper when “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c)(2). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). In determining summary judgment motions, “facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The party seeking summary
judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported
motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that
there is a genuine issue for trial.’ “ Anderson, 477 U.S. at 255 (quoting Fed R. Civ. P. 56(e)).
FACTUAL BACKGROUND
The Plaintiffs, 21 of them total1, are employees of AM General Corporation’s (“AM
General”) Commercial Assembly Plant in Mishawaka, Indiana. This plant manufactures nonmilitary, commercial Hummer II vehicles for General Motors (“the H2 Plant”).
The Union
Defendants represent a bargaining unit of production and maintenance employees at the Commercial
Assembly Plant, which includes the Plaintiffs who are members of that bargaining unit.
1
It appears that there were 30 employees/union members who were affected negatively by the
Union actions in this case. Only 21 of them are part of this lawsuit.
2
AM
General has a separate production facility that manufactures Humvee military vehicles (“the H1
Plant”) whose employees are also represented by the Union Defendants through a separate
bargaining unit and subject to a separate collective bargaining agreement. Pursuant to the collective
bargaining agreements effective at each facility, the plants maintained separate seniority lists,
although employees at each plant had limited rights under the governing agreements to move
between plants.
In 2008, AM General laid off the majority of its existing H2 Plant workforce due to a lack
of production orders for the commercial Hummer. The H1 Plant continued to operate without
layoffs and, certain H2 Plant employees that met seniority and attendance criteria were transferred
to the H1 Plant. A small skeleton crew of workers remained at the H2 Plant to keep the facility
operational while AM General sought new contracts to continue operations at the H2 Plant.
In April 2011, the existing H2 collective bargaining agreement expired and the Union
Defendants through its local bargaining unit Local #5, and AM General entered into a six year
collective bargaining agreement which governed the terms and conditions of employment for the
members of the bargaining unit at the H2 Plant. At the time the Union negotiated and ratified this
agreement, AM General had obtained a contract to produce MV-1 prototype taxis and was looking
to expand that work to include other commercial vehicle contracts. However, as part of its
negotiations with the Union Defendants, AM General demanded wage and benefit concessions from
the Union asserting that such concessions were critical in retaining the new MV-1 taxi contract as
well as necessary to expand its commercial production capacity. The negotiations resulted in a two
tier wage and benefit package, which provided reduced benefits for new hires and employees on
layoff. A higher wage and benefit package was designated for a group of employees that AM
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General selected based on their seniority and skill set. These employees were designated the “MV-1
Pre-Launch Group.”
Because the Plaintiffs were laid off at the time the Union Defendants
negotiated the collective bargaining agreement, they did not vote on the new contract.
Upon the ratification of the new collective bargaining agreement, all the Plaintiffs were
eventually recalled to the H2 Plant. Once recalled, all of the Plaintiffs resumed the payment of
Union dues and were listed on the roster of Union membership. However, none of the Plaintiffs
were designees of the MV-1 Pre-Launch Group and thus, none received the higher wage and benefit
package negotiated by the Union Defendants for those employees. Plaintiffs believe that the Union
contract which favors some members of the bargaining unit over others violates the Union’s duty
of fair representation.
Article 33 of the UAW Constitution sets forth a detailed procedure for its members to
challenge the actions of local unions and officials as well as actions of the international union. It
is undisputed that none of the Plaintiffs utilized this procedure at any time to challenge the actions
of the Union Defendants.2 It is further undisputed that the Plaintiffs, as due paying members, are
provided a copy of a UAW newspaper known as Solidarity which publishes regular articles advising
members of their appeal rights under the UAW Constitution. None of the Plaintiffs aver that they
were unaware of their rights under the UAW Constitution.
2
Given the Plaintiffs’ concession that none of them followed this procedure, the details of what
the membership must do to contest union action is relegated to a footnote. A member has sixty (60) days
to initiate an appeal to the membership once the “appellant becomes aware, or reasonably should have
become aware, of the alleged action or decision appealed.” (UAW Const. Art. 33 §4(b)). If this challenge
is rejected by the Local Union or fails to act, the member has the right to appeal within thirty (30) days to
the International Executive Board (“IEB”). Such an appeal may result in a hearing where the member
may have counsel present, submit evidence, and provide a brief. If the member is dissatisfied with the
decision of the IEB, that decision may be appealed to one of two bodies, the Convention Appeals
Committee (CAC) or the Public Review Board (PRB). The CAC consists of elected constitutional
convention delegates. The PRB consists of independent individuals with no UAW affiliation.
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Seven of the Plaintiffs, however, assert that they made attempts to exhaust their
administrative remedies and reasonably believed that they had exhausted those remedies. Plaintiffs
Terrie Vavrek (“Vavrek”), Dennis Whitaker (“Whitaker”), Glenda Scruggs (“Scruggs”), Linda
Ragsdale (“Ragsdale”), Ann Geiger (“Geiger”), Melissa Dailey (“Dailey”), and Earleen Carter
(“Carter”) each claim that they spoke with Bruce Sweitzer (“Sweitzer”), Chairman of the Local 5
or Frank Bonk (“Bonk”), Union Steward and inquired about the filing of a grievance. These
Plaintiffs aver that Sweitzer informed them that the Union had already filed a grievance relating to
the contract and the grievance procedures had been exhausted. (Vavrek Aff. ¶3; Whitaker Aff. ¶2,
Geiger Aff. ¶3; Dailey Aff. ¶2; Carter Aff. ¶2). These Plaintiffs further aver that after speaking with
Sweitzer, they turned to Bonk and requested that he file a grievance on their behalf. (Vavrek Aff.
¶6; Whitaker Aff. ¶4; Scruggs Aff. ¶3; Ragsdale Aff. ¶2; Dailey Aff. ¶3; Carter Aff. ¶3). At every
turn, these plaintiffs assert, in varying verbal formulations, that they were told either that nothing
could be done or that a grievance had already been filed.3
Defendants filed the present motion for summary judgment asserting that the Plaintiffs’ claim
that the Unions breached its duty of fair representation is barred because they did not pursue the
internal administrative remedies available to them. Plaintiffs, in response, assert that the Court
should overlook their failure to utilize the internal administrative remedies provided in the UAW
Constitution and not require exhaustion since Union officials represented to them that nothing could
be done. Alternatively, they request the Court to stay this case so that they can assert their
administrative remedies. It is to these arguments that the Court now turns.
3
It appears to be conceded that the remaining Plaintiffs had no reasonable expectation that a
grievance had been filed or that their administrative remedies had been exhausted.
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DISCUSSION
“When a labor organization has been selected as the exclusive representative of the
employees in a bargaining unit, it has a duty ... to represent all members fairly.” Marquez v. Screen
Actors Guild, Inc., 525 U.S. 33, 44 (1998). This duty exists through the negotiation of a collectivebargaining agreement and during the administration of the agreement, see, e.g., Thomas v. United
Parcel Service, Inc., 890 F.2d 909, 917–18 (7th Cir. 1989); Schultz v. Owens–Ill. Inc., 696 F.2d 505,
514 (7th Cir.1982), and the union's obligation throughout is “to serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct,” Vaca v. Sipes, 386 U.S. 171, 177 (1967).
A claim that a union has breached its duty to fairly represent one of its members presumes
that the union has been given a complete opportunity to pursue that member's grievance. See
Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965). “Generally speaking, a member will
not be heard to complain in court that his union breached its duty of fair representation unless he has
first presented his grievance to the union and, if rebuffed, exhausted any and all of the internal union
appeals available to him- so long as such appeals could result either in granting him complete relief
or in the reinstatement of his grievance.” Bell v. DaimlerChrysler Corp. 547 F.3d 796, 807 -808 (7th
Cir. 2008) (citing Clayton v. UAW, 451 U.S. 679, 692-93 (1981)). In striking a balance between the
policy of providing a judicial forum to enforce the duty of fair representation and the competing
policy of encouraging nonjudicial resolution of labor disputes, Clayton held that “courts have
discretion to decide whether to require exhaustion of internal union procedures.” Clayton, 451 U.S.
at 689 (citing NLRB v. Marine Workers Local 22, 391 U.S. 418, 426 n. 8 (1968)). This discretionary
exhaustion requirement for intra-union disputes fosters “ ‘private resolution of disputes, responsible
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union self-regulation, union assistance in the interpretation of its governing document, [and] robust
union processes,’ while at the same time giving the district court the flexibility to allow a case to
continue despite the plaintiff's failure to exhaust internal remedies.” Fulk v. United Transp. Union,
108 F.3d 113, 116–17 (7th Cir.1997) (quoting Stevens v. Northwest Ind. Dist. Council, United Bhd.
of Carpenters, 20 F.3d 720, 732 (7th Cir.1994).
In this case, the Union's constitution provides a thorough process for its membership to
appeal decisions of the local unions. The plaintiffs do not dispute this point, nor do they dispute that
they did not follow the procedure; but, they argue instead that the Court should excuse their failure
to exhaust under Clayton’s holding that dismissal of a suit for failure to exhaust internal union
remedies is committed to the district court's discretion.
Among the (non-exclusive) factors bearing on the court’s discretion are: (1) whether the
union has manifested such hostility to the plaintiff's grievance as to render exhaustion of his internal
appeal rights futile, (2) whether the internal union appeals procedures are inadequate either to
reactivate the grievance or to result in complete relief to the plaintiff, and (3) whether demanding
exhaustion would cause undue delay in the resolution of the plaintiff's complaint. Clayton, 451 U.S.
at 689; see also Hammer v. UAW, Local Union No. 550, 178 F.3d 856, 858 (7th Cir. 1999); Fulk, 108
F.3d at 116.
Here, the Plaintiffs appear to rely on the first two factors to support their claim.
First, they assert that they were misled by Union representatives into believing that the exhaustion
requirement had been met and thus, the Union was hostile to their efforts to utilize the internal
procedures to challenge Union action. Specifically, they assert that Union officials told them that
a grievance had already been filed and that it was in the appeals process. They further contend that
the Union officers told them “nothing more could be done” and the contract “was more binding than
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the Constitution.” Second, they assert that the internal administrative process could not have
afforded them full relief so as to make the internal procedure futile.
Plaintiffs’ first argument, that the Union told them that “nothing else could be done,” does
nothing to advance their cause. “Ignorance of one's internal union remedies does not excuse the
failure to pursue such remedies before bringing suit.” Bell, 547 F.3d at 809 (citing Hammer, 178
F.3d at 858-59; Miller v. General Motors Corp., 675 F.2d 146, 149-150 (7th Cir.1982). The Seventh
Circuit has repeatedly held that union members have an obligation of diligence in ascertaining what
avenues of relief are available to them within the union. See Hammer, 178 F.3d at 858-59, Miller,
675 F.2d at 149-50, and Newgent v. Modine Mfg. Co., 495 F.2d 919, 927-28 (7th Cir.1974),
overruled on other grounds by Rupe v. Spector Freight Sys., Inc., 679 F.2d 685, 690 n. 3 (7th
Cir.1982).
In Newgent the Court specifically explained that a union member must make himself aware
of the remedies that are available to him even when he has been told by a union officer that nothing
more can be done:
By becoming a member of the [u]nion, Newgent was contractually obligated to
exhaust union remedies before resorting to a court action. Necessarily implied in
this obligation is the duty to become aware of the nature and availability of union
remedies. Newgent was not justified in remaining in ignorance of the provisions
governing his own union or, in fact, of relying on a statement by an officer that
there was nothing he could do.
495 F.2d at 927-28 (internal quotation marks, footnote, and citations omitted). See also, Bell, 547
F.3d at 809 (plaintiffs’ reliance on union official’s statement that their grievances were a “dead
issue” does not excuse failure to exhaust internal remedies); Baldini v. Local Union No. 1095, UAW,
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581 F.2d 145, 148 (7th Cir.1978) (futility not shown despite international union official's remark to
plaintiff that nothing more could be done for him), overruled on other grounds by Rupe v. Spector
Freight Sys., supra 679 F.2d at 690 n. 3.
In light of Newgent’s holding, which places the onus on union members to know and assert
their rights, the Plaintiffs here are hard-pressed to argue that the Union should bear the burden of
their failure to do more than simply inquire about their rights. In fact, it appears that only some of
them went even that far and, while seven of the Plaintiffs asked Union officials about filing a
grievance, none of them actually took any steps to file one, nor do they assert that they attempted
to file one and the Union refused to process it or mishandled it in any way. As a result, the Plaintiffs
have not demonstrated that the Union Defendants exhibited any hostility toward their attempts to
utilize the internal union procedures.
Next, Plaintiffs assert that the Union official’s comments to them that “nothing could be
done” and the contract was “more binding than the Constitution” suggest that utilizing the internal
process would have been futile. Again, however, this argument does not advance the Plaintiffs’
cause for at least two reasons. First, even if the Plaintiffs here could demonstrate that the Union
officials they spoke with were hostile to their rights as members, the hostility of union officials to
a member's grievance will demonstrate futility only when that hostility “permeate [s] every step of
the internal appeals process....” Hammer, 178 F.3d at 859 (citing Sosbe v. Delco Elec's, 830 F.2d
83, 86 (7th Cir.1987)). There is simply no evidence that had the Plaintiffs filed individual
grievances, every step of the internal appeals process would have been thwarted by union hostility.
See LaPerriere v. International Union, 348 F.3d 127, 131 (6th Cir. 2003) (stating that to excuse
exhaustion requirement hostility must exist at every level of the appeals process and finding that
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Plaintiff met hostility requirement when both the local and the international unions indicated it was
useless to appeal and refused to process plaintiff’s grievance further).
Second, Union members are not excused from exhausting the appeals available to them
simply because they cannot obtain all of the relief they seek. Bell, 547 F.3d at 809. Plaintiffs rely
on the fact that Union officials told them that the contract was “set in stone” and could not be
undone. But here, they seek monetary damages for the Union’s alleged breach of its duty of fair
representation to them. This remedy could have been obtained through the internal appeals process.
Thus, there is no basis for this Court to excuse the failure of the Plaintiffs to pursue their
administrative remedies.
Finally, the Plaintiffs seek a stay of these proceedings so they can pursue the internal
procedures and exhaust the administrative requirements in the UAW Constitution. Plaintiffs have
previously submitted this request to Magistrate Judge Nuechterlein in the form of a motion to extend
the response time to the Union Defendants’ Motion for Summary Judgment. The Magistrate Judge
denied that motion. [DE 33].
Plaintiffs represent that there are currently grievances pending
relating to both this underlying claim and the Union officials misrepresentation to the Plaintiffs set
forth in this lawsuit. In addition, Plaintiffs assert that the International Union President “could”
waive the time limits for the filing of an appeal so that they can pursue the internal appeals process.
Thus, they seek a stay of these proceedings or a dismissal without prejudice.
Plaintiffs cite no binding case authority4 that holds that Plaintiffs can meet the exhaustion
4
Plaintiffs do cite to a Sixth Circuit case which simply recites the fact that the Plaintiff in that case
repeatedly offered to stay the lawsuit if the union would allow him to exhaust his administrative remedies.
The case does not provide any legal authority for the proposition that the Court is required to stay a case
under the present circumstances.
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requirement after commencing suit. Rather all the case law indicates that where plaintiffs have
failed to exhaust their internal remedies prior to filling suit, and that failure is not excused by the
Court, their case against the Union for breach of the duty of fair representation cannot proceed. See
Bell, 547 F.3d at 807-808. For this reason and the reasons explained above, the Union Defendants
are entitled to summary judgment.
CONCLUSION
Based on the foregoing, the Union Defendants’ Motion for Summary Judgment is
GRANTED. The Clerk is directed to enter judgment in favor of the Defendants.
Entered: This 13th day of August, 2013
s/ William C. Lee
United States District Court
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