. . .
Plaintiff interprets the lack of any reference to "aggrieved employee" in the first quoted paragraph, and the designation of "the aggrieved employee and/or members of the Grievance Committee" as participants in Step 1 as imposing a duty on the Grievance Committee to initiate Step 1 whether or not the aggrieved employee chooses to participate.
We find this interpretation wholly unreasonable. The agreement is perhaps not a model of clarity, but it obviously imposes upon the union only the responsibility of acting as intermediary in presenting an employee's grievance to the company. It cannot be fairly read as imposing the additional burden of anticipating grievances and presenting them when not requested to do so.
It is apparent that Plaintiff has intentionally bypassed the contractual grievance procedure and seeks to challenge his discharge for the first time in this suit. We have no jurisdiction to consider such a claim.
Plaintiff also failed to invoke the contractual remedies to challenge his eight-day suspension in February, 1977, and we therefore reach the same conclusion on that claim as we reach in regard to the discharge claim.
Plaintiff's challenge to his two-day suspension in 1975 must be viewed differently than the previously discussed claims because Plaintiff did pursue the contractual grievance procedure at that time. The union processed that grievance unsuccessfully through the first four steps, but refused to proceed to the fifth step, which is binding arbitration. Plaintiff contends that the refusal to proceed to arbitration was a breach of the union's duty of fair representation, while the union claims that the refusal was based on a good faith conclusion that the suspension was justified and that arbitration would be fruitless.
Refusal to proceed to arbitration alone does not amount to a breach of the union's duty to Plaintiff, absent a showing that the decision was made arbitrarily or in bad faith. VACA v. SIPES, supra, 386 U.S. at 190-91, 17 L. Ed. 2d at 857-58. Although Plaintiff alleges generally that the Union's decision not to arbitrate was in bad faith, he alleges no facts on which he bases that conclusion. Nor does he allege that he made any effort to protest that decision at the time he learned of it.
Article XXVII of the constitution of the IBEW
provides a procedure by which aggrieved union members can protest any wrong done by the local union, which should be pursued before bringing charges against the union in this Court. BRADY v. TRANS WORLD AIRLINES, 401 F.2d 87 (3d Cir. 1968).
To excuse his failure to pursue the intra-union grievance procedure Plaintiff states that "the union never offered any advice to Plaintiff and did not advise him of his right to protest the local union's representation of him to the International union pursuant to the union constitution." Plaintiff's affidavit, para. 12. We do not find this to be a sufficient excuse. In becoming a member of the union, Plaintiff became bound to abide by the constitution, including its prohibition against resorting to the courts without first making use of the intra-union grievance process, Article XXVII, Sec. 1. More than ignorance of the constitutions provisions is necessary to relieve Plaintiff of this prerequisite to suit. NEWGENT v. MODINE MFG. CO., 495 F.2d 919 (7th Cir. 1974); ADAMS v. LOCAL 1193, 96 L.R.R.M. 2867, No. 74-704 (M.D. Pa. 1977).
For the foregoing reasons the motions of both Defendants for summary judgment will be granted.
R. DIXON HERMAN UNITED STATES DISTRICT JUDGE
AND NOW, this 6th day of June, 1978, IT IS ORDERED that the motions of Defendants for summary judgment be and they are hereby granted and entered against Plaintiff.