should the grievance procedure prove satisfactory to either the union or the employer. (However, only grievances involving the interpretation or application of the agreement's provisions are arbitrable).
As stated before, the failure to comply with these procedures does not bar an employee's suit to enforce the agreement if the employee can show that the union wrongfully failed to initiate or process his grievance. However, such a showing cannot be made unless the employee first appeals his union representative's decision not to assert his grievance within the union itself. Under the Constitution of plaintiff's International Union (Attachment #1 to defendant Unions' Motion to Dismiss the Complaint), a union member may appeal an adverse decision by the union to the "appropriate body" of his local union (in this case, the local's general membership, see affidavit of John Alexander) within sixty (60) days of the time the aggrieved member first becomes aware of the union's decision. (Constitution, Article 33, Section 2). Should his appeal to the local's members prove unsuccessful, he may appeal to the International Unions' Executive Board. (Constitution, Article 33, Section 5). Should the decision of the Executive Board be against the aggrieved, he may appeal to either the Appeal's Committee of the Constitution Convention or to the independent Public Review Board (Constitution, Article 33, Section 8).
It is undisputed that plaintiff did not present any grievance, oral or written, to his employer at the time he signed the lay-off slip. Nor is it disputed that plaintiff never appealed the union's decision not to present a grievance for him to either the local membership or any of the International's appellate tribunals. In fact, plaintiff never even approached John Wright, the shop chairman, or John Alexander, the local union President, concerning his lay-off until nine months after it occurred. As for the grievance filed by plaintiff upon his return to work in April, 1973, the union processed this grievance through all three stages but declined to submit it to arbitration. Nothing presented by plaintiff contradicts the testimony of the union officials that plaintiff never appealed the union's refusal to go to arbitration to either the local membership or the International's appellate tribunals.
Plaintiff contends that his ignorance of the grievance and internal union appeals procedures should excuse his failure to pursue either of them. In support of this contention plaintiff offers the testimony of the local union president that the men in the plant were generally unsophisticated about union matters. Plaintiff also contends that it would be unreasonable to expect him to appeal to the union when union officials had told him to accept his lay-off. Contentions identical to these were addressed and rejected by the Sixth Circuit in the case of Newgent v. Modine Manufacturing Company, 495 F.2d 919 (7th Cir. Ind. 1974). There the Court stated:
"By becoming a member of the Union [plaintiff] was contractually obligated to exhaust union remedies before resorting to a court action [citation omitted]. Necessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies. [Plaintiff] 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." Donahue v. Acme Markets, Inc., 54 L.C. para. 11, 413 (E.D. Pa. 1966) '". 495 F.2d at 919-20.