must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement." Id. at 184.
The Supreme Court noted an exception to this general rule where, as is true in the instant action, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and it is further alleged that "the employee-plaintiff has been prevented from exhausting his contractual remedies by the union's wrongful refusal to process the grievance." Vaca v. Sipes, supra at 185 (original emphasis). A wrongful refusal is indicated by proof that the union breached its duty of fair representation in its handling of the employee's grievance. Id. at 186.
A union's conduct toward a member of the collective bargaining unit violates its duty of fair representation when it is "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, supra at 190. The reference in Vaca to "arbitrary" action broadened the scope of union duty and undermined the continuing vitality of cases which required the showing of a bad faith motive or an intent to hostilely discriminate in order to prove a breach of the duty. Duggan v. International Association of Machinists, 510 F.2d 1086, 1088 (9th Cir.), Cert. Denied, 421 U.S 1012, 95 S. Ct. 2417, 44 L. Ed. 2d 680 (1975).
A union now violates its duty of fair representation, for example, when it either arbitrarily ignores a meritorious grievance or processes the claim in a perfunctory manner. Vaca v. Sipes, supra at 191; Crenshaw v. Allied Chemical Corp., 387 F. Supp. 594, 600 (E.D.Va. 1975). While it may be true "that proof that the union may have acted negligently or exercised poor judgment is not enough to support a claim of unfair representation," Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970), plaintiff here has alleged more than simply that. He asserts that the Union failed to investigate his grievance thoroughly and "arbitrarily and capriciously refused to submit the dispute to arbitration without giving reasons therefor." Plaintiff has stated a claim which, if proved at trial, would entitle him to the relief requested.
The Union alternatively contends that the complaint must be dismissed because plaintiff has failed to allege either that his internal union remedies have been exhausted or that they are inadequate or unavailable.
Admittedly, the Third Circuit rule requires that a union member exhaust the intra-union remedies available to him, or show an adequate reason for having failed to do so, before a suit charging the union with a breach of its duty of fair representation will be permitted in the courts. This rule furthers the admirable objective of postponing judicial interference in the internal affairs of a labor organization until it has had a prior opportunity to resolve disputes involving its own legitimate concerns. Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S. Ct. 680, 21 L. Ed. 2d 691 (1969); Yeager v. C. Schmidt & Sons, Inc., 343 F. Supp. 927, 929 (E.D.Pa. 1972).
We find this exhaustion requirement somewhat troubling, however, in the context of an employee's suit against his employer for wrongful discharge under 29 U.S.C. § 185. In such actions, the employee's claim against his union is frequently only a necessary stepping-stone, mandated by Vaca v. Sipes, supra, to an examination of his real grievance, the discharge by the employer. Since Vaca made it clear that an employee is subject to the union's nonarbitrary, discretionary power to settle or abandon his grievance, even if it can later be established by proof that his underlying complaint against the employer was meritorious, Bazarte v. United Transportation Union, supra at 872, the requirement that the employee prove preliminarily a violation of the union's duty of fair representation presents a quite substantial obstacle to his obtaining a hearing on his breach-of-contract claim, even without considering the effect of the additional prerequisite that he exhaust his internal union remedies. This Court is concerned that the most frequent result of this additional exhaustion requirement may unfortunately be the "exhaustion" of deserving employees before they are able to obtain judicial relief for their wrongful discharge.
Another serious question raised by the application of the exhaustion-of-internal-union-remedies rule in this type of case is whether the ultimately successful employee, who takes his claim through the intra-union appellate procedure, will always obtain a totally compensatory remedy. If the higher tribunals within the union affirm the original decision not to pursue his grievance, an employee, if he still retains enough energy to continue the fight, will then be in a position to begin a suit against his employer and the union based on the Vaca model. Assuming he is successful in court, the employee will receive complete relief. The problem arises, however, when an intra-union appeal results in the reversal of an original decision to not pursue an employee's grievance and a ruling to carry the claim all the way through the grievance and arbitration procedure. It is in that type of case that the union, as well as the employer, may receive an undeserved windfall.
In Vaca, the Supreme Court recognized that there are cases in which at least part of an aggrieved employee's damages may be attributable to the union's breach of duty. 386 U.S. at 196. Believing that the employer should not be liable for any increases in the damages due an employee caused by the union's wrongful refusal to process his grievance, and realizing that an arbitrator may have no power under the collective bargaining agreement to award damages against the union for a breach of its fair representation duty, the Court refused to hold that an order compelling arbitration was the only remedy available to a court when such a breach of duty was proved. Instead, the Supreme Court held that, where appropriate to insure complete relief to the employee, either damages or equitable relief would also be available against both the union and the employer. Id. at 196, 197-198.
The exhaustion-of-union-remedies rule may reopen precisely this loophole which the Supreme Court attempted to close in Vaca. This is true where the initial union refusal to process the grievance was based on arbitrary or discriminatory grounds constituting a breach of the duty of fair representation. A reversal of that decision by the union appellate tribunal, and an order to take the claim to arbitration, still leaves open the possibility that the employee will be unable to obtain an award at arbitration against the union for the increase in his damages due to the initial, wrongful refusal to process his grievance. The employee will simply be left without a remedy for this wrong. Thus, although not the intent of the requirement, strict obedience to the exhaustion rule could result in the immunization of a great deal of lower-level union wrongdoing.
It has been argued that the national policy favoring arbitration of labor disputes may be facilitated by requiring the exhaustion of internal union remedies before suit can be brought. Orphan v. Furnco Construction Corporation, 466 F.2d 795, 800 (7th Cir. 1972); Brookins v. Chrysler Corporation, Dodge Main Division, 381 F. Supp. 563, 569 (E.D.Mich. 1974). The court in Brookins reasoned that:
If the union's wrongful refusal to continue the grievance were reversed without prejudice to his rights, the employee would no longer have a cause of action for breach of the duty of fair representation, and consequently would have no right under Vaca to sue his employer for breach of contract. This conclusion is consistent with the national labor policy in favor of arbitration. 381 F. Supp. at 569.
This Court is not convinced that it will be possible, in the majority of cases, for the employee to obtain relief from the union appellate procedure such that he will have suffered no prejudice to his rights. As already discussed, there is the possibility that complete compensation may be unobtainable by the employee at arbitration following a union reversal of position.
There is also frequently a contractual time limit on the availability of arbitration, see infra, which is exceeded by the length of the union appellate process.
Without even considering these problems, however, we can see no appreciable benefit to the federal labor policy in favor of arbitration resulting from the intra-union remedies exhaustion requirement, except for that derived totally at the expense of the individual employee's interests. The exhaustion-of-contractual-remedies requirement of Vaca v. Sipes, supra, was admittedly designed to maintain the vitality of the arbitration system by funneling the settlement of disputes through the contractual grievance procedure, rather than the judicial system. At the same time, however, it was recognized that there is an inherent danger to the system in having too many grievances proceed all the way through the process to arbitration. The rule established in Vaca, requiring a showing of arbitrary, discriminatory or bad faith conduct in order to prove a breach of a union's duty of fair representation, was intended to maintain the union's incentive to settle the vast majority of grievances short of arbitration. 386 U.S. at 192-193. The problem involved in having too many claims arbitrated was explained by the Supreme Court as follows:
This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by L.M.R.A. § 203(d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. 386 U.S. at 192 (citations omitted).