(D.C. Civil Action No. 71-217) (D.C. Civil Action No. 72-87) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
McLaughlin, Rosenn and Hunter, Circuit Judges. McLaughlin, Circuit Judge, dissenting.
This is a consolidated appeal from two orders issued in separate actions by the United States District Court for the Middle District of Pennsylvania. In the first case, No. 72-1460, plaintiff Hubicki sued defendant ACF Industries, Inc. ("ACF"), seeking damages for his allegedly wrongful discharge from employment and reinstatement to his former job. ACF moved for summary judgment which was granted by Judge Herman on November 4, 1971, on the ground that plaintiff's complaint and affidavit failed to state a cause of action. Hubicki then instituted a second lawsuit, No. 72-1712, this time against ACF and his union, the United Steelworkers of America ("the union"). This case was assigned to Judge Muir who entered a judgment on the pleadings in favor of ACF on the theory that plaintiff's claim was res judicata, 344 F. Supp. 1247. He also granted the union's motion for summary judgment after finding that there existed no triable issue of material fact and that the union should prevail as a matter of law. Plaintiff appeals from all of these rulings and we affirm.
Jurisdiction is founded in § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). See Smith v. Evening News Ass'n, 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267 (1962).
When Judge Herman granted ACF's motion for summary judgment in the first action, he had before him only plaintiff's very short complaint and his affidavit opposing defendant's motion. The essence of the complaint is that Hubicki had been employed by ACF from May, 1947 until February 25, 1970, when he was wrongfully discharged in violation of the master collective bargaining agreement between the company and the union. In his affidavit, Hubicki states that his house burned down on February 1, 1970, and that he left work two weeks later, with permission, in order to repair another house so that his family would not have to continue to live with relatives. He admits that he might have received a letter from ACF dated February 24, 1970, notifying him of the termination of his seniority rights, but says that he does not remember either receiving or signing for it and that its contents did not come to his attention until early April, 1970. Shortly thereafter, Hubicki discussed his problem with Chairman Ely of the union grievance committee. Ely tried to get plaintiff reinstated but ACF refused, and he then informed Hubicki that there was nothing else the union could do in his behalf since he had failed to file a grievance within thirty days as required by the contract. Hubicki also claims that he made several unsuccessful attempts on his own to persuade ACF to permit him to present a grievance.
The collective bargaining agreement between ACF and the union provided a complete procedure for initiating and processing grievances.*fn1 Under Section 7-2, any employee with a request or complaint was directed to meet with his foreman to discuss the matter. If the complaint could not be resolved in this manner, and if it involved the "interpretation, application of, or compliance with the provisions of this Agreement," then it was defined as a grievance by Section 7-3. Section 7-4 required that a grievance not settled within two days under Section 7-2 must be filed in writing within thirty days in order to be considered further.
As Judge Herman correctly pointed out, the law is clear "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, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965). See Desrosiers v. American Cyanamid Co., 377 F.2d 864 (2d Cir. 1967); Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir. 1966), cert. denied, 386 U.S. 957, 18 L. Ed. 2d 105, 87 S. Ct. 1026 (1967); Broniman v. Great Atlantic and Pacific Tea Co., 353 F.2d 559 (6th Cir. 1965), cert. denied, 384 U.S. 907, 16 L. Ed. 2d 360, 86 S. Ct. 1343 (1966). The district court found that no such attempt had been alleged in the present complaint, even when read in conjunction with Hubicki's affidavit, and thus it concluded that the allegations were insufficient to state a cause of action and that ACF should prevail on its motion for summary judgment.
Plaintiff challenges the district court ruling on three grounds. His first contention is that his complaint and affidavit established a valid cause of action. We disagree. It is not asserted in either Hubicki's complaint or his affidavit that he ever took the first step and contacted his foreman about his grievance as required by Section 7-2 of the collective bargaining agreement. Equally important, there is no allegation that plaintiff ever requested the union's help in filing a written grievance in conformance with Section 7-4. In the final paragraph of his affidavit, Hubicki does state that he asked ACF several times to allow him to present a grievance but that the company refused. However, for a discharged employee to bring an action against his employer without first exhausting his contractual grievance remedies, the employee must be able to "prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance." Vaca v. Sipes, 386 U.S. 171, 186, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Since Hubicki did not assert lack of fair representation on the part of his union, and since he did not allege or show any attempt to use the contract grievance procedure, we believe that the district court properly concluded that plaintiff failed to state a cause of action upon which relief could be granted. Vaca v. Sipes, supra, and Republic Steel Co. v. Maddox, supra.
Plaintiff's next argument is that the district court should have allowed him to amend his complaint since Fed.R.Civ.P. 15(a) provides that court permission for amendments "shall be freely given when justice so requires." We have examined the record in this case, and it does not appear that plaintiff ever made a motion to amend his complaint.*fn2 Consequently, we find that this argument is on its face completely lacking in merit.
The last issue in plaintiff's first appeal is whether Judge Herman was warranted, after considering plaintiff's complaint and affidavit, in granting ACF's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff's argument on this point is less than clear, but he apparently feels that his complaint was not disposed of on the merits and that summary judgment was therefore improper.
Rule 56(b) authorizes a defending party to move "at any time" for a summary judgment in his favor. Such a motion may be made before pleading to the complaint, Hartmann v. Time, Inc., 166 F.2d 127, 131 (3d Cir. 1947), cert. denied, 334 U.S. 838, 92 L. Ed. 1763, 68 S. Ct. 1495 (1948), and Gifford v. Travelers Protective Ass'n, 153 F.2d 209, 210-211 (9th Cir. 1946), and supporting affidavits are not necessary. Chambers v. United States, 357 F.2d 224, 227 (8th Cir. 1966); Reynolds ...