Petitioners, union officials, were sued in a state court by a
union member who alleged wrongful discharge by his employer in
violation of the collective bargaining agreement and the union's
arbitrary refusal to take his grievance to arbitration under the
fifth and final step of the bargaining agreement's grievance
procedures. The employee, whose duties required strenuous activity,
was discharged on the ground of poor health. During the fourth
grievance step, the union sent the employee to a physician for a
complete examination. The report was unfavorable to the employee,
and the union decided not to take the grievance to arbitration.
After a jury verdict for the employee, the trial judge set aside
the verdict on the ground that the NLRB had exclusive jurisdiction
over the controversy. The Kansas City Court of Appeals affirmed,
but the Missouri Supreme Court reversed and ordered the jury's
verdict reinstated.
Held:
1. Since the union's duty, as exclusive agent, fairly to
represent all members of a designated unit is based on federal
statutes, federal law governs the employee's cause of action for
breach of that duty. Pp.
386 U. S.
176-177.
2. Although the NLRB has recently held that a union's breach of
its statutory duty of fair representation is an unfair labor
practice under § 8(b) of the National Labor Relations Act, it does
not follow that the broad preemption doctrine defined in
San
Diego Building Trades Council v. Garmon, 359 U.
S. 236, holding that the NLRB has exclusive jurisdiction
over activity arguably subject to § 8 of the Act, is applicable
thereto. Pp.
386 U. S.
177-188.
(a) The preemption doctrine has not been rigidly applied where
it could not be fairly inferred that Congress intended exclusive
jurisdiction to lie with the NLRB. Pp.
386 U. S.
179-180.
(b) The preemption rule has not been applied where the activity
regulated was merely a peripheral concern of the Labor Management
Relations Act. P.
386 U. S.
180.
(c) The doctrine of fair representation, which protects
individuals against arbitrary union conduct, might be jeopardized
by the NLRB's failure to act in certain cases if the preemption
Page 386 U. S. 172
doctrine were applied to oust the courts of their traditional
jurisdiction to curb arbitrary union conduct. Pp.
386 U. S.
181-183.
(d) As a practical matter, in an employee's suit against his
employer for breach of contract under § 301 of the Labor Management
Relations Act, the employee may well find it necessary to prove a
breach of duty by his union, a facet of the case which does not
destroy the court's jurisdiction, even if the employee joins the
union as a defendant. That being so, the result should be no
different if the employee sues the employer and the union in
separate actions. Pp.
386 U. S.
183-187.
(e) Where a breach of duty by the union and a breach of contract
by the employer are proven in a § 301 breach of duty action, the
court must fashion an appropriate remedy against both defendants.
Pp.
386 U. S.
187-188.
3. A union breaches its duty of fair representation when its
conduct toward a member of the designated unit is arbitrary,
discriminatory or in bad faith, but it does not breach that duty
merely because it settles a grievance short of arbitration, and the
Missouri Supreme Court erred in upholding the jury's verdict solely
on the ground that the evidence supported the employee's claim of
wrongful discharge. Pp.
386 U. S.
190-193.
4. As a matter of federal law, the evidence does not support a
verdict that the union breached its duty, as the employee, who had
no absolute right to have his grievance arbitrated, failed to prove
arbitrary or bad faith conduct by the union in processing his
grievance. Pp.
386 U. S.
193-195.
5. The claimed damages, which were primarily those suffered as a
result of the employer's alleged breach of contract, should not
have been all charged to the union, and, if liability were found,
it should have been apportioned between the employer and the union
according to the damages caused by the fault of each. Pp.
386 U. S.
195-198.
397 S.W.2d
658, reversed.
Page 386 U. S. 173
MR. JUSTICE WHITE delivered the opinion of the Court.
On February 13, 1962, Benjamin Owens filed this class action
against petitioners, as officers and representatives of the
National Brotherhood of Packinghouse Workers [
Footnote 1] and of its Kansas City Local No. 12
(the Union), in the Circuit Court of Jackson County, Missouri.
Owens, a Union member, alleged that he had been discharged from his
employment at Swift & Company's (Swift) Kansas City Meat
Packing Plant in violation of the collective bargaining agreement
then in force between Swift and the Union, and that the Union had
"arbitrarily, capriciously and without just or reasonable reason or
cause" refused to take his grievance with Swift to arbitration
under the fifth step of the bargaining agreement's grievance
procedures.
Petitioners' answer included the defense that the Missouri
courts lacked jurisdiction because the gravamen of Owens' suit was
"arguably and basically" an unfair labor practice under § 8(b) of
the National Labor Relations Act (N.L.R.A.), as amended, 61 Stat.
141, 29 U.S.C. § 158(b), within the exclusive jurisdiction of the
National Labor Relations Board (NLRB). After a jury trial, a
verdict was returned awarding Owens $7,000 compensatory and $3,300
punitive damages. The trial judge set aside the verdict and entered
judgment for petitioners on the ground that the NLRB had exclusive
jurisdiction
Page 386 U. S. 174
over this controversy, and the Kansas City Court of Appeals
affirmed. The Supreme Court of Missouri reversed and directed
reinstatement of the jury's verdict, [
Footnote 2] relying on this Court's decisions in
International Assn. of Machinists v. Gonzales,
356 U. S. 617, and
in
Automobile Workers v. Russell, 356 U.
S. 634.
397 S.W.2d
658. During the appeal, Owens died, and respondent, the
administrator of Owens' estate, was substituted. We granted
certiorari to consider whether exclusive jurisdiction lies with the
NLRB. and, if not, whether the finding of Union liability and the
relief afforded Owens are consistent with governing principles of
federal labor law. 384 U.S. 969. The American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO), Swift, and the
United States have filed
amicus briefs supporting
petitioners. Although we conclude that state courts have
jurisdiction in this type of case, we hold that federal law
governs, that the governing federal standards were not applied
here, and that the judgment of the Supreme Court of Missouri must
accordingly be reversed.
I
In mid-1959, Owens, a long-time high blood pressure patient,
became sick and entered a hospital on sick leave from his
employment with Swift. After a long rest during which his weight
and blood pressure were reduced, Owens was certified by his family
physician as fit to resume his heavy work in the packing plant.
However, Swift's company doctor examined Owens upon his return and
concluded that his blood pressure was too high to permit
reinstatement. After securing a second authorization from another
outside doctor, Owens returned to the plant, and a nurse permitted
him to resume work
Page 386 U. S. 175
on January 6, 1960. However, on January 8, when the doctor
discovered Owens' return, he was permanently discharged on the
ground of poor health.
Armed with his medical evidence of fitness, Owens then sought
the Union's help in securing reinstatement, and a grievance was
filed with Swift on his behalf. By mid-November, 1960, the
grievance had been processed through the third and into the fourth
step of the grievance procedure established by the collective
bargaining agreement. [
Footnote
3] Swift adhered to its position that Owens' poor health
justified his discharge, rejecting numerous medical reports of
reduced blood pressure proffered by Owens and by the Union. Swift
claimed that these reports were not based upon sufficiently
thorough medical tests.
On February 6, 1961, the Union sent Owens to a new doctor at
Union expense "to see if we could get some better medical evidence
so that we could go to arbitration with his case." R. at 107. This
examination did not support Owens' position. When the Union
received the report, its executive board voted not to take the
Owens grievance to arbitration, because of insufficient medical
evidence. Union officers suggested to Owens that he accept Swift's
offer of referral to a rehabilitation center, and the grievance was
suspended for that purpose. Owens rejected this alternative and
demanded that the Union take his grievance to arbitration, but the
Union
Page 386 U. S. 176
refused. With his contractual remedies thus stalled at the
fourth step, Owens brought this suit. The grievance was finally
dismissed by the Union and Swift shortly before trial began in
June, 1964. [
Footnote 4]
In his charge to the jury, the trial judge instructed that
petitioners would be liable if Swift had wrongfully discharged
Owens and if the Union had "arbitrarily . . . and without just
cause or excuse . . . refused" to press Owens' grievance to
arbitration. Punitive damages could also be awarded, the trial
judge charged, if the Union's conduct was "willful, wanton and
malicious." However, the jury must return a verdict for the
defendants, the judge instructed,
"if you find and believe from the evidence that the union and
its representatives acted reasonably and in good faith in the
handling and processing of the grievance of the plaintiff."
R. at 161-162. The jury then returned the general verdict for
Owens which eventually was reinstated by the Missouri Supreme
Court.
II
Petitioners challenge the jurisdiction of the Missouri courts on
the ground that the alleged conduct of the Union was arguably an
unfair labor practice, and within the exclusive jurisdiction of the
NLRB. Petitioners rely on
Miranda Fuel Co., 140 N.L.R.B.
181 (1962),
enforcement denied, 326 F.2d 172 (C.A.2d
Cir.1963), where a sharply divided Board held for the first time
that a union's breach of its statutory duty of fair representation
violates N.L.R.A. § 8(b), as amended. With the NLRB's adoption of
Miranda Fuel, petitioners argue, the broad preemption
doctrine defined in
San Diego Building Trades Council v.
Garmon, 359 U. S. 236,
becomes
Page 386 U. S. 177
applicable. For the reasons which follow, we reject this
argument.
It is now well established that, as the exclusive bargaining
representative of the employees in Owens' bargaining unit, the
Union had a statutory duty fairly to represent all of those
employees, both in its collective bargaining with Swift,
see
Ford Motor Co. v. Huffman, 345 U. S. 330;
Syres v. Oil Workers International Union, 350 U.S. 892,
and in its enforcement of the resulting collective bargaining
agreement,
see Humphrey v. Moore, 375 U.
S. 335. The statutory duty of fair representation was
developed over 20 years ago in a series of cases involving alleged
racial discrimination by unions certified as exclusive bargaining
representatives under the Railway Labor Act,
see Steele v.
Louisville & N. R. Co., 323 U. S. 192;
Tunstall v. Brotherhood of Locomotive Firemen,
323 U. S. 210, and
was soon extended to unions certified under the N.L.R.A.,
see
Ford Motor Co. v. Huffman, supra. Under this doctrine, the
exclusive agent's statutory authority to represent all members of a
designated unit includes a statutory obligation 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.
Humphrey v.
Moore, 375 U.S. at
375 U. S. 342.
It is obvious that Owens' complaint alleged a breach by the Union
of a duty grounded in federal statutes, and that federal law
therefore governs his cause of action.
E.g., Ford Motor Co. v.
Huffman, supra.
Although N.L.R.A. § 8(b) was enacted in 1947, the NLRB did not,
until
Miranda Fuel, interpret a breach of a union's duty
of fair representation as an unfair labor practice. In
Miranda
Fuel, the Board's majority held that N.L.R.A. § 7 gives
employees
"the right to be free from unfair or irrelevant or invidious
treatment by their exclusive bargaining agent in matters affecting
their
Page 386 U. S. 178
employment,"
and
"that Section 8(b)(1)(A) of the Act accordingly prohibits labor
organizations, when acting in a statutory representative capacity,
from taking action against any employee upon considerations or
classifications which are irrelevant, invidious, or unfair."
140 N.L.R.B. at 185. The Board also held that an employer who
"participates" in such arbitrary union conduct violates § 8(a)(1),
and that the employer and the union may violate § 8(a)(3) and
8(b)(2), respectively,
"when, for arbitrary or irrelevant reasons or upon the basis of
an unfair classification, the union attempts to cause or does cause
an employer to derogate the employment status of an employee.
[
Footnote 5]"
Id. at 186.
The Board's
Miranda Fuel decision was denied
enforcement by a divided Second Circuit, 326 F.2d 172 (1963).
However, in
Local 12, United Rubber Workers v. N.L.R.B.,
368 F.2d 12, the Fifth Circuit upheld the Board's
Miranda
Fuel doctrine in an opinion suggesting that the Board's
approach will preempt judicial cognizance of some fair
representation duty suits. In light of these developments,
petitioners argue that Owens' state court action was based upon
Union conduct that is arguably proscribed by N.L.R.A. § 8(b), was
potentially enforceable by the NLRB, and was therefore preempted
under the
Garmon line of decisions.
A. In
Garmon, this Court recognized that the broad
powers conferred by Congress upon the National Labor Relations
Board to interpret and to enforce the complex Labor Management
Relations Act (L.M.R.A.) necessarily imply that potentially
conflicting "rules of law, of remedy, and of administration" cannot
be permitted to
Page 386 U. S. 179
operate. 359 U.S. at
359 U. S. 242.
In enacting the National Labor Relations Act and, later, the Labor
Management Relations Act,
"Congress did not merely lay down a substantive rule of law to
be enforced by any tribunal competent to apply law generally to the
parties. It went on to confide primary interpretation and
application of its rules to a specific and specially constituted
tribunal. . . . Congress evidently considered that centralized
administration of specially designed procedures was necessary to
obtain uniform application of its substantive rules and to avoid
these diversities and conflicts likely to result from a variety of
local procedures and attitudes toward labor controversies. . . . A
multiplicity of tribunals and a diversity of procedures are quite
as apt to produce incompatible or conflicting adjudications as are
different rules of substantive law."
Garner v. Teamsters Union, 346 U.
S. 485,
346 U. S.
490-491. Consequently, as a general rule, neither state
nor federal courts have jurisdiction over suits directly involving
"activity [which] is arguably subject to § 7 or § 8 of the Act."
San Diego Building Trades Council v. Garmon, 359 U.S. at
359 U. S.
245.
This preemption doctrine, however, has never been rigidly
applied to cases where it could not fairly be inferred that
Congress intended exclusive jurisdiction to lie with the NLRB.
Congress itself has carved out exceptions to the Board's exclusive
jurisdiction: Section 303 of the Labor Management Relations Act,
1947, 61 Stat. 158, 29 U.S.C. § 187, expressly permits anyone
injured by a violation of N.L.R.A. § 8(b)(4) to recover damages in
a federal court even though such unfair labor practices are also
remediable by the Board; § 301 of that Act, 61 Stat. 156, 29 U.S.C.
§ 185, permits suits for breach of a collective
Page 386 U. S. 180
bargaining agreement regardless of whether the particular breach
is also an unfair labor practice within the jurisdiction of the
Board (
see Smith v. Evening News Assn., 371 U.
S. 195), and N.L.R.A. § 14, as amended by Title VII,
701(a) of the Labor-Management Reporting and Disclosure Act of
1959, 73 Stat. 541, 29 U.S.C. 164(c), permits state agencies and
courts to assume jurisdiction "over labor disputes over which the
Board declines, pursuant to paragraph (1) of this subsection, to
assert jurisdiction" (
compare Guss v. Utah Labor Board,
353 U. S. 1).
In addition to these congressional exceptions, this Court has
refused to hold state remedies preempted
"where the activity regulated was a merely peripheral concern of
the Labor Management Relations Act. . . . [or] touched interests so
deeply rooted in local feeling and responsibility that, in the
absence of compelling congressional direction, we could not infer
that Congress has deprived the States of the power to act."
San Diego Building Trades Council v. Garmon, 359 U.S.
at
359 U. S.
243-244.
See, e.g., Linn v. Plant Guard
Workers, 383 U. S. 53
(libel);
Automobile Workers v. Russell, 356 U.
S. 634 (violence);
International Assn. of Machinists
v. Gonzales, 356 U. S. 617
(wrongful expulsion from union membership);
Allen-Bradley Local
v. Wisconsin Employment Relations Board, 315 U.
S. 740 (mass picketing).
See also Hanna Mining Co.
v. Marine Engineers Beneficial Assn., 382 U.
S. 181. While these exceptions in no way undermine the
vitality of the preemption rule where applicable, they demonstrate
that the decision to preempt federal and state court jurisdiction
over a given class of cases must depend upon the nature of the
particular interests being asserted and the effect upon the
administration of national labor policies of concurrent judicial
and administrative remedies.
A primary justification for the preemption doctrine -- the need
to avoid conflicting rules of substantive law
Page 386 U. S. 181
in the labor relations area and the desirability of leaving the
development of such rules to the administrative agency created by
Congress for that purpose -- is not applicable to cases involving
alleged breaches of the union's duty of fair representation. The
doctrine was judicially developed in
Steele and its
progeny, and suits alleging breach of the duty remained judicially
cognizable long after the NLRB was given unfair labor practice
jurisdiction over union activities by the L.M.R.A.; [
Footnote 6] Moreover, when the Board declared
in
Miranda Fuel that a union's breach of its duty of fair
representation would henceforth be treated as an unfair labor
practice, the Board adopted and applied the doctrine as it had been
developed by the federal courts.
See 140 N.L.R.B. at
184-186. Finally, as the dissenting Board members in
Miranda
Fuel have pointed out, fair representation duty suits often
require review of the substantive positions taken and policies
pursued by a union in its negotiation of a collective bargaining
agreement and in its handling of the grievance machinery; as these
matters are not normally within the Board's unfair labor practice
jurisdiction, it can be doubted whether the Board brings
substantially greater expertise to bear on these problems than do
the courts, which have been engaged in this type of review since
the
Steele decision. [
Footnote 7]
In addition to the above considerations, the unique interests
served by the duty of fair representation doctrine
Page 386 U. S. 182
have a profound effect, in our opinion, on the applicability of
the preemption rule to this class of cases. The federal labor laws
seek to promote industrial peace and the improvement of wages and
working conditions by fostering a system of employee organization
and collective bargaining.
See N.L.R.A. § 1, as amended,
61 Stat. 136, 29 U.S.C. § 151. The collective bargaining system, as
encouraged by Congress and administered by the NLRB, of necessity
subordinates the interests of an individual employee to the
collective interests of all employees in a bargaining unit.
See, e.g., J. I. Case Co. v. Labor Board, 321 U.
S. 332. This Court recognized in
Steele that
the congressional grant of power to a union to act as exclusive
collective bargaining representative, with its corresponding
reduction in the individual rights of the employees so represented,
would raise grave constitutional problems if unions were free to
exercise this power to further racial discrimination. 323 U.S. at
323 U. S.
198-199. Since that landmark decision, the duty of fair
representation has stood as a bulwark to prevent arbitrary union
conduct against individuals stripped of traditional forms of
redress by the provisions of federal labor law. Were we to hold, as
petitioners and the Government urge, that the courts are foreclosed
by the NLRB's
Miranda Fuel decision from this traditional
supervisory jurisdiction, the individual employee injured by
arbitrary or discriminatory union conduct could no longer be
assured of impartial review of his complaint, since the Board's
General Counsel has unreviewable discretion to refuse to institute
an unfair labor practice complaint.
See United Electrical
Contractors Assn. v. Ordman, 366 F.2d 776,
cert.
denied, 385 U.S. 1026. [
Footnote 8] The existence of even a small group
Page 386 U. S. 183
of cases in which the Board would be unwilling or unable to
remedy a union's breach of duty would frustrate the basic purposes
underlying the duty of fair representation doctrine. For these
reasons, we cannot assume from the NLRB's tardy assumption of
jurisdiction in these cases that Congress, when it enacted N.L.R.A.
§ 8(b) in 1947, intended to oust the courts of their traditional
jurisdiction to curb arbitrary conduct by the individual employee's
statutory representative.
B. There are also some intensely practical considerations which
foreclose preemption of judicial cognizance of fair representation
duty suits, considerations which emerge from the intricate
relationship between the duty of fair representation and the
enforcement of collective bargaining contracts. For the fact is
that the question of whether a union has breached its duty of fair
representation will, in many cases, be a critical issue in a suit
under L.M.R.A. § 301 charging an employer with a breach of
contract. To illustrate, let us assume a collective bargaining
agreement that limits discharges to those for good cause and that
contains no grievance, arbitration or other provisions purporting
to restrict access to the courts. If an employee is discharged
without cause, either the union or the employee may sue the
employer under L.M.R.A. § 301. Under this section, courts have
jurisdiction over suits to enforce collective bargaining agreements
even though the conduct of the employer which is challenged as a
breach of contract is also arguably an unfair labor practice within
the jurisdiction of
Page 386 U. S. 184
the NLRB.
Garmon and like cases have no application to
§ 301 suits.
Smith v. Evening News Assn., 371 U.
S. 195.
The rule is the same with regard to preemption where the
bargaining agreement contains grievance and arbitration provisions
which are intended to provide the exclusive remedy for breach of
contract claims. [
Footnote 9]
If an employee is discharged without cause in violation of such an
agreement, that the employer's conduct may be an unfair labor
practice does not preclude a suit by the union [
Footnote 10] against the employer to compel
arbitration of the employee's grievance, the adjudication of the
claim by the arbitrator, or a suit to enforce the resulting
arbitration award.
See, e.g., Steelworkers v. American Mfg.
Co., 363 U. S. 564.
However, if the wrongfully discharged employee himself resorts
to the courts before the grievance procedures have been fully
exhausted, the employer may well defend on the ground that the
exclusive remedies provided by such a contract have not been
exhausted. Since the employee's claim is based upon breach of the
collective bargaining agreement, he is bound by terms of that
agreement which govern the manner in which contractual rights may
be enforced. For this reason, it is settled that the employee must
at least attempt to exhaust exclusive grievance and arbitration
procedures established by the bargaining agreement.
Republic Steel Corp. v.
Maddox, 379 U.S.
Page 386 U. S. 185
650. However, because these contractual remedies have been
devised and are often controlled by the union and the employer,
they may well prove unsatisfactory or unworkable for the individual
grievant. The problem then is to determine under what circumstances
the individual employee may obtain judicial review of his breach of
contract claim despite his failure to secure relief through the
contractual remedial procedures.
An obvious situation in which the employee should not be limited
to the exclusive remedial procedures established by the contract
occurs when the conduct of the employer amounts to a repudiation of
those contractual procedures.
Cf. Drake Bakeries v. Bakery
Workers, 370 U. S. 254,
370 U. S.
260-263.
See generally 6A Corbin, Contracts
1443 (1962). In such a situation (and there may, of course, be
others), the employer is estopped by his own conduct to rely on the
unexhausted grievance and arbitration procedures as a defense to
the employee's cause of action.
We think that another situation when the employee may seek
judicial enforcement of his contractual rights arises if, as is
true here, the union has sole power under the contract to invoke
the higher stages of the grievance procedure, and if, as is alleged
here, the employee plaintiff has been prevented from exhausting his
contractual remedies by the union's wrongful refusal to process the
grievance. It is true that the employer in such a situation may
have done nothing to prevent exhaustion of the exclusive
contractual remedies to which he agreed in the collective
bargaining agreement. But the employer has committed a wrongful
discharge in breach of that agreement, a breach which could be
remedied through the grievance process to the employee-plaintiff's
benefit were it not for the union's breach of its statutory duty of
fair representation to the employee. To leave the employee
remediless in such circumstances would, in our
Page 386 U. S. 186
opinion, be a great injustice. We cannot believe that Congress,
in conferring upon employers and unions the power to establish
exclusive grievance procedures, intended to confer upon unions such
unlimited discretion to deprive injured employees of all remedies
for breach of contract. Nor do we think that Congress intended to
shield employers from the natural consequences of their breaches of
bargaining agreements by wrongful union conduct in the enforcement
of such agreements.
Cf. Richardson v. Texas N. O. R. Co.,
242 F.2d 230, 235-236 (C.A. 5th Cir.).
For these reasons, we think the wrongfully discharged employee
may bring an action against his employer in the face of a defense
based upon the failure to exhaust contractual remedies, provided
the employee can prove that the union as bargaining agent breached
its duty of fair representation in its handling of the employee's
grievance. [
Footnote 11] We
may assume for present purposes that such a breach of duty by the
union is an unfair labor practice, as the NLRB and the Fifth
Circuit have held. The employee's suit against the employer,
however, remains a § 301 suit, and the jurisdiction of the courts
is no more destroyed by the fact that the employee, as part and
parcel of his § 301 action, finds it necessary to prove an unfair
labor practice by the union than it is by the fact that the suit
may involve an unfair labor practice by the employer himself. The
court is free to determine
Page 386 U. S. 187
whether the employee is barred by the actions of his union
representative, and, if not, to proceed with the case. And if, to
facilitate his case, the employee joins the union as a defendant,
the situation is not substantially changed. The action is still a §
301 suit, and the jurisdiction of the courts is not preempted under
the
Garmon principle. This, at the very least, is the
holding of
Humphrey v. Moore, supra, with respect to
preemption, as petitioners recognize in their brief. And, insofar
as adjudication of the union's breach of duty is concerned, the
result should be no different if the employee, as Owens did here,
sues the employer and the union in separate actions. There would be
very little to commend a rule which would permit the Missouri
courts to adjudicate the Union's conduct in an action against
Swift, but not in an action against the Union itself.
For the above reasons, it is obvious that the courts will be
compelled to pass upon whether there has been a breach of the duty
of fair representation in the context of many § 301 breach of
contract actions. If a breach of duty by the union and a breach of
contract by the employer are proven, the court must fashion an
appropriate remedy. Presumably, in at least some cases, the union's
breach of duty will have enhanced or contributed to the employee's
injury. What possible sense could there be in a rule which would
permit a court that has litigated the fault of employer and union
to fashion a remedy only with respect to the employer? Under such a
rule, either the employer would be compelled by the court to pay
for the union's wrong -- slight deterrence, indeed, to future union
misconduct -- or the injured employee would be forced to go to two
tribunals to repair a single injury. Moreover, the Board would be
compelled in many cases either to remedy injuries arising out of a
breach of contract, a task which Congress has not assigned to it,
or to leave the individual employee without
Page 386 U. S. 188
remedy for the union's wrong. [
Footnote 12] Given the strong reasons for not preempting
duty of fair representation suits in general, and the fact that the
courts, in many § 301, suits must adjudicate whether the union has
breached its duty, we conclude that the courts may also fashion
remedies for such a breach of duty.
It follows from the above that the Missouri courts had
jurisdiction in this case. Of course, it is quite another problem
to determine what remedies may be available against the Union if a
breach of duty is proven.
See 386 U.
S. infra. But the unique role played by the
duty of fair representation doctrine in the scheme of federal labor
laws, and its important relationship to the judicial enforcement of
collective bargaining agreements in the context presented here,
render the
Garmon preemption doctrine inapplicable.
III
Petitioners contend, as they did in their motion for judgment
notwithstanding the jury's verdict, that Owens failed to prove that
the Union breached its duty of fair representation in its handling
of Owens' grievance. Petitioners
Page 386 U. S. 189
also argue that the Supreme Court of Missouri, in rejecting this
contention, applied a standard that is inconsistent with governing
principles of federal law with respect to the Union's duty to an
individual employee in its processing of grievances under the
collective bargaining agreement with Swift. We agree with both
contentions.
A. In holding that the evidence at trial supported the jury's
verdict in favor of Owens, the Missouri Supreme Court stated:
"The essential issue submitted to the jury was whether the union
. . . arbitrarily . . . refused to carry said grievance . . .
through the fifth step. . . ."
"We have concluded that there was sufficient substantial
evidence from which the jury reasonably could have found the
foregoing issue in favor of plaintiff. It is notable that no
physician actually testified in the case. Both sides were content
to rely upon written statements. Three physicians certified that
plaintiff was able to perform his regular work. Three other
physicians certified that they had taken plaintiff's blood
pressure, and that the readings were approximately 160 over 100. It
may be inferred that such a reading does not indicate that his
blood pressure was dangerously high. Moreover, plaintiff's evidence
showed that he had actually done hard physical labor periodically
during the four years following his discharge. We accordingly rule
this point adversely to defendants."
397 S.W.2d at 665. Quite obviously, the question which the
Missouri Supreme Court thought dispositive of the issue of
liability was whether the evidence supported Owens' assertion that
he had been wrongfully discharged by Swift, regardless of the
Union's good faith in reaching a contrary
Page 386 U. S. 190
conclusion. This was also the major concern of the plaintiff at
trial: the bulk of Owens' evidence was directed at whether he was
medically fit at the time of discharge and whether he had performed
heavy work after that discharge.
A breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith.
See Humphrey v. Moore, supra; Ford Motor Co. v. Huffman,
supra. There has been considerable debate over the extent of
this duty in the context of a union's enforcement of the grievance
and arbitration procedures in a collective bargaining agreement.
See generally Blumrosen, The Worker and Three Phases of
Unionism: Administrative and Judicial Control of the Worker-Union
Relationship, 61 Mich.L.Rev. 1435, 1481501 (1963); Comment, Federal
Protection of Individual Rights under Labor Contracts, 73 Yale L.J.
1215 (1964). Some have suggested that every individual employee
should have the right to have his grievance taken to arbitration.
[
Footnote 13] Others have
urged that the union be given substantial discretion (if the
collective bargaining agreement so provides) to decide whether a
grievance should be taken to arbitration, subject only to the duty
to refrain from patently wrongful conduct such as racial
discrimination or personal hostility. [
Footnote 14]
Page 386 U. S. 191
Though we accept the proposition that a union may not
arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion, we do not agree that the individual employee
has an absolute right to have his grievance taken to arbitration
regardless of the provisions of the applicable collective
bargaining agreement. In L.M.R.A. § 203(d), 61 Stat. 154, 29 U.S.C.
§ 173(d), Congress declared that
"Final adjustment by a method agreed upon by the parties is . .
. the desirable method for settlement of grievance disputes arising
over the application or interpretation of an existing collective
bargaining agreement."
In providing for a grievance and arbitration procedure which
gives the union discretion to supervise the grievance machinery and
to invoke arbitration, the employer and the union contemplate that
each will endeavor in good faith to settle grievances short of
arbitration. Through this settlement process, frivolous grievances
are ended prior to the most costly and time-consuming step in the
grievance procedures. Moreover, both sides are assured that similar
complaints will be treated consistently, and major problem areas in
the interpretation of the collective bargaining contract can be
isolated, and perhaps resolved. And finally, the settlement process
furthers the interest of the union as statutory agent and as
co-author of the bargaining agreement in representing the employees
in the enforcement of that agreement.
See Cox, Rights
Under a Labor Agreement, 69 Harv.L.Rev. 601 (1956).
If the individual employee could compel arbitration of his
grievance regardless of its merit, the settlement machinery
provided by the contract would be substantially undermined, thus
destroying the employer's confidence in the union's authority and
returning the individual grievant to the vagaries of independent
and unsystematic negotiation. Moreover, under such a rule, a
significantly greater number of grievances would proceed to
Page 386 U. S. 192
arbitration. [
Footnote
15] This would greatly increase the cost of the grievance
machinery and could so overburden the arbitration process as to
prevent it from functioning successfully.
See NLRB v. Acme
Industrial Co., 385 U. S. 432,
385 U. S. 438;
Ross, Distressed Grievance Procedures and Their Rehabilitation, in
Labor Arbitration and Industrial Change, Proceedings of the 16th
Annual Meeting, National Academy of Arbitrators 104 (1963). 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. Nor do we see substantial danger to the interests of
the individual employee if his statutory agent is given the
contractual power honestly and in good faith to settle grievances
short of arbitration. For these reasons, we conclude that a union
does not breach its duty of fair representation, and thereby open
up a suit by the employee for breach of contract, merely because it
settled the grievance short of arbitration.
For these same reasons, the standard applied here by the
Missouri Supreme Court cannot be sustained. For if a union's
decision that a particular grievance lacks
Page 386 U. S. 193
sufficient merit to justify arbitration would constitute a
breach of the duty of fair representation because a judge or jury
later found the grievance meritorious, the union's incentive to
settle such grievances short of arbitration would be seriously
reduced. The dampening effect on the entire grievance procedure of
this reduction of the union's freedom to settle claims in good
faith would surely be substantial. Since the union's statutory duty
of fair representation protects the individual employee from
arbitrary abuses of the settlement device by providing him with
recourse against both employer (in a § 301 suit) and union, this
severe limitation on the power to settle grievances is neither
necessary nor desirable. Therefore, we conclude that the Supreme
Court of Missouri erred in upholding the verdict in this case
solely on the ground that the evidence supported Owens' claim that
he had been wrongfully discharged.
B. Applying the proper standard of union liability to the facts
of this case, we cannot uphold the jury's award, for we conclude
that, as a matter of federal law, the evidence does not support a
verdict that the Union breached its duty of fair representation. As
we have stated, Owens could not have established a breach of that
duty merely by convincing the jury that he was, in fact, fit for
work in 1960; he must also have proved arbitrary or bad faith
conduct on the part of the Union in processing his grievance. The
evidence revealed that the Union diligently supervised the
grievance into the fourth step of the bargaining agreement's
procedure, with the Union's business representative serving as
Owens' advocate throughout these steps. When Swift refused to
reinstate Owens on the basis of his medical reports indicating
reduced blood pressure, the Union sent him to another doctor of his
own choice, at Union expense, in an attempt to amass persuasive
medical evidence of Owens' fitness for work. When this examination
proved unfavorable, the Union
Page 386 U. S. 194
concluded that it could not establish a wrongful discharge. It
then encouraged Swift to find light work for Owens at the plant.
When this effort failed, the Union determined that arbitration
would be fruitless, and suggested to Owens that he accept Swift's
offer to send him to a heart association for rehabilitation. At
this point, Owens' grievance was suspended in the fourth step in
the hope that he might be rehabilitated.
In administering the grievance and arbitration machinery as
statutory agent of the employees, a union must, in good faith and
in a nonarbitrary manner, make decisions as to the merits of
particular grievances.
See Humphrey v. Moore, 375 U.
S. 335,
375 U. S.
349-350;
Ford Motor Co. v. Huffman,
345 U. S. 330,
345 U. S.
337-339. In a case such as this, when Owens supplied the
Union with medical evidence supporting his position, the Union
might well have breached its duty had it ignored Owens' complaint
or had it processed the grievance in a perfunctory manner.
See Cox, Rights under a Labor Agreement, 69 Harv.L.Rev. at
632-634. But here, the Union processed the grievance into the
fourth step, attempted to gather sufficient evidence to prove
Owens' case, attempted to secure for Owens less vigorous work at
the plant, and joined in the employer's efforts to have Owens
rehabilitated. Only when these efforts all proved unsuccessful did
the Union conclude both that arbitration would be fruitless and
that the grievance should be dismissed. There was no evidence that
any Union officer was personally hostile to Owens or that the Union
acted at any time other than in good faith. [
Footnote 16] Having concluded that
Page 386 U. S. 195
the individual employee has no absolute right to have his
grievance arbitrated under the collective bargaining agreement at
issue, and that a breach of the duty of fair representation is not
established merely by proof that the underlying grievance was
meritorious, we must conclude that that duty was not breached
here.
IV
In our opinion, there is another important reason why the
judgment of the Missouri Supreme Court cannot stand. Owens' suit
against the Union was grounded on his claim that Swift had
discharged him in violation of the applicable collective bargaining
agreement. In his complaint, Owens alleged
"that, as a direct result of said wrongful breach of said
contract by employer . . . , Plaintiff was damaged in the sum of
Six Thousand, Five Hundred ($6,500.00) Dollars per year, continuing
until the date of trial."
For the Union's role in "preventing Plaintiff from completely
exhausting administrative remedies," Owens requested, and the jury
awarded, compensatory damages for the above-described breach of
contract plus punitive damages of $3,000. R. at 4. We hold that
such damages are not recoverable from the Union in the
circumstances of this case.
The appropriate remedy for a breach of a union's duty of fair
representation must vary with the circumstances of the particular
breach. In this case, the employee's complaint was that the Union
wrongfully failed to afford him the arbitration remedy against his
employer established by the collective bargaining agreement. But
the damages sought by Owens were primarily those suffered
Page 386 U. S. 196
because of the employer's alleged breach of contract. Assuming
for the moment that Owens had been wrongfully discharged, Swift's
only defense to a direct action for breach of contract would have
been the Union's failure to resort to arbitration,
compare
Republic Steel Corp. v. Maddox, 379 U.
S. 650,
with Smith v. Evening News Assn.,
371 U. S. 195, and
if that failure was itself a violation of the Union's statutory
duty to the employee, there is no reason to exempt the employer
from contractual damages which he would otherwise have had to pay.
See pp.
386 U. S.
185-186,
supra. The difficulty lies in
fashioning an appropriate scheme of remedies.
Petitioners urge that an employee be restricted in such
circumstances to a decree compelling the employer and the union to
arbitrate the underlying grievance. [
Footnote 17] It is true that the employee's action is
based on the employer's alleged breach of contract plus the union's
alleged wrongful failure to afford him his contractual remedy of
arbitration. For this reason, an order compelling arbitration
should be viewed as one of the available remedies when a breach of
the union's duty is proved. But we see no reason inflexibly to
require arbitration in all cases. In some cases, for example, at
least part of the employee's damages may be attributable to the
union's breach of duty, and an arbitrator may have no power under
the bargaining agreement to award such damages against the union.
In other cases, the arbitrable issues may be substantially resolved
in the course of trying the fair representation controversy. In
such situations, the court should be free to decide the contractual
claim and to award the employee appropriate damages or equitable
relief.
A more difficult question is what portion of the employee's
damages may be charged to the union: in particular,
Page 386 U. S. 197
may an award against a union include, as it did here, damages
attributable solely to the employer's breach of contract? We think
not. Though the union has violated a statutory duty in failing to
press the grievance, it is the employer's unrelated breach of
contract which triggered the controversy and which caused this
portion of the employee's damages. The employee should have no
difficulty recovering these damages from the employer, who cannot,
as we have explained, hide behind the union's wrongful failure to
act; in fact, the employer may be (and probably should be) joined
as a defendant in the fair representation suit, as in
Humphrey
v. Moore, supra. It could be a real hardship on the union to
pay these damages, even if the union were given a right of
indemnification against the employer. With the employee assured of
direct recovery from the employer, we see no merit in requiring the
union to pay the employer's share of the damages. [
Footnote 18]
The governing principle, then, is to apportion liability between
the employer and the union according to the damage caused by the
fault of each. Thus, damages attributable solely to the employer's
breach of contract should not be charged to the union, but
increases if any
Page 386 U. S. 198
in those damages caused by the union's refusal to process the
grievance should not be charged to the employer. In this case, even
if the Union had breached its duty, all or almost all of Owens'
damages would still be attributable to his allegedly wrongful
discharge by Swift. For these reasons, even if the Union here had
properly been found liable for a breach of duty, it is clear that
the damage award was improper.
Reversed.
[
Footnote 1]
Now known as the National Brotherhood of Packinghouse &
Dairy Workers.
[
Footnote 2]
Punitive damages were reduced to $3,000, the amount claimed by
Owens in his complaint.
[
Footnote 3]
The agreement created a five-step procedure for the handling of
grievances. In steps one and two, either the aggrieved employee or
the Union's representative presents the grievance first to Swift's
department foreman, and then in writing to the division
superintendent. In step three, grievance committees of the Union
and management meet, and the company must state its position in
writing to the Union. Step four is a meeting between Swift's
general superintendent and representatives of the National Union.
If the grievance is not settled in the fourth step, the National
Union is given power to refer the grievance to a specified
arbitrator.
[
Footnote 4]
No notice of the dismissal was given to Owens, who by that time
had filed a second suit against Swift for breach of contract. The
suit against Swift is still pending in a pretrial stage.
[
Footnote 5]
See also Cargo Handlers, Inc., 159 N.L.R.B. No. 17;
Local 12, United Rubber Workers, 150 N.L.R.B. 312,
enforced, 368 F.2d 12 (C.A. 5th Cir.1966);
Maremont
Corp., 149 N.L.R.B. 482;
Galveston Maritime Assn.,
Inc., 148 N.L.R.B. 897;
Hughes Tool Co., 147 N.L.R.B.
1573.
[
Footnote 6]
See Ford Motor Co. v. Huffman, 345 U.
S. 330,
345 U. S. 332,
n. 4. In
Huffman, the NLRB submitted an
amicus
brief stating that it had not assumed preemptive jurisdiction over
fair representation duty issues. Mem. for the NLRB, Nos.193 and
194, Oct. Term, 195. In
Syres v. Oil Workers International
Union, 350 U.S. 892, the Court reversed the dismissal of a
suit which claimed breach of the duty of fair representation
despite express reliance by one respondent on exclusive NLRB
jurisdiction. Brief for Resp. Gulf Oil Corp., No. 390, Oct. Term,
1955.
[
Footnote 7]
See Hughes Tool Co., 147 N.L.R.B. 1573, 1589-1590
(Chairman McCulloch and Member Fanning dissenting in part).
[
Footnote 8]
The public interest in effectuating the policies of the federal
labor laws, not the wrong done the individual employee, is always
the Board's principal concern in fashioning unfair labor practice
remedies.
See N.L.R.A. § 10(c), as amended, 61 Stat. 147,
29 U.S.C. § 160(c);
Phelps Dodge Corp. v. Labor Board,
313 U. S. 177.
Thus, the General Counsel will refuse to bring complaints on behalf
of injured employees where the injury complained of is
"insubstantial."
See Administrative Decision of the
General Counsel, Case No. K-610, Aug. 13, 1956, in CCH N.L.R.B.
Decisions, 1956 1957, Transfer Binder, � 54,059.
[
Footnote 9]
If a grievance and arbitration procedure is included in the
contract, but the parties do not intend it to be an exclusive
remedy, then a suit for breach of contract will normally be heard
even though such procedures have not been exhausted.
See
Republic Steel Corp. v. Maddox, 379 U.
S. 650,
379 U. S.
657-658; 6A Corbin, Contracts § 1436 (1962).
[
Footnote 10]
Occasionally, the bargaining agreement will give the aggrieved
employee, rather than his union, the right to invoke arbitration.
See Retail Clerks v. Lion Dry Goods, Inc., 341 F.2d 715,
cert. denied, 382 U.S. 839.
[
Footnote 11]
Accord, Hiller v. Liquor Salesmen's Union, 338 F.2d 778
(C.A.2d Cir.);
Hardcastle v. Western Greyhound Lines, 303
F.2d 182 (C.A. 9th Cir.),
cert. denied, 371 U.S. 920;
Fiore v. Associated Transport, Inc., 255 F.
Supp. 596; Bieski v. Eastern Automobile Forwarding
Co., 231 F.
Supp. 710,
aff'd, 354 F.2d 414 (C.A.3d Cir.);
Ostrofsky v. United Steelworkers, 171 F.
Supp. 782,
aff'd per curiam, 273 F.2d 614 (C.A. 4th
Cir.),
cert. denied, 363 U.S. 849;
Jenkins v. Wm.
Schluderberg-T. J. Kurdle Co., 217 Md. 556, 144 A.2d 88.
[
Footnote 12]
Assuming for the moment that Swift breached the collective
bargaining agreement in discharging Owens and that the Union
breached its duty in handling Owens' grievance, this case
illustrates the difficulties that would result from a rule
preempting the courts from remedying the Union's breach of duty. If
Swift did not "participate" in the Union's unfair labor practice,
the Board would have no jurisdiction to remedy Swift's breach of
contract. Yet a court might be equally unable to give Owens full
relief in a § 301 suit against Swift. Should the court award
damages against Swift for Owens' full loss, even if it concludes
that part of that loss was caused by the Union's breach of duty? Or
should it award Owens only partial recovery hoping that the Board
will make him whole? These remedy problems are difficult enough
when one tribunal has all parties before it; they are impossible if
two independent tribunals, with different procedures, time
limitations, and remedial powers, must participate.
[
Footnote 13]
See Donnelly v. United Fruit Co., 40 N.J. 61,
190 A.2d
825; Report of Committee on Improvement of Administration of
Union-Management Agreements, 1954, Individual Grievances, 50
Nw.U.L.Rev. 113 (1955); Murphy, The Duty of Fair Representation
under Taft-Hartley, 30 Mo.L.Rev. 373, 389 (1965); Summers,
Individual Rights in Collective Agreements and Arbitration, 37
N.Y.U.L.Rev. 362 (1962).
[
Footnote 14]
See Sheremet v. Chrysler Corp., 372 Mich. 626,
127 N.W.2d
313; Wyle, Labor Arbitration and the Concept of Exclusive
Representation, 7 B.C.Ind. & Com.L.Rev. 783 (1966).
[
Footnote 15]
Under current grievance practices, an attempt is usually made to
keep the number of arbitrated grievances to a minimum. An officer
of the National Union testified in this case that only one of 967
grievances filed at all of Swift's plants between September. 1961,
and October, 1963, was taken to arbitration. And the AFL-CIO's
amicus brief reveals similar performances at General
Motors Corporation and United States Steel Corporation, two of the
Nation's largest unionized employers: less than .05% of all written
grievances filed during a recent period at General Motors required
arbitration, while only 5.6% of the grievances processed beyond the
first step at United States Steel were decided by an
arbitrator.
[
Footnote 16]
Owens did allege and testify that petitioner Vaca, President of
the Kansas City local, demanded $300 in expenses before the Union
would take the grievance to arbitration, a charge which all the
petitioners vigorously denied at trial. Under the collective
bargaining agreement, the local union had no power to invoke
arbitration.
See n 3,
supra. Moreover, the Union's decision to send Owens to
another doctor at Union expense occurred after Vaca's alleged
demand, and the ultimate decision not to invoke arbitration came
later still. Thus, even if the jury believed Owens' controverted
testimony, we do not think that this incident would establish a
breach of duty by the union.
[
Footnote 17]
Obviously, arbitration is an appropriate remedy only when the
parties have created such a procedure in the collective bargaining
agreement.
[
Footnote 18]
We are not dealing here with situations where a union has
affirmatively caused the employer to commit the alleged breach of
contract. In cases of that sort, where the union's conduct is found
to be an unfair labor practice, the NLRB has found an unfair labor
practice by the employer, too, and has held the union and the
employer jointly and severally liable for any back pay found owing
to the particular employee who was the subject of their joint
discrimination.
E.g., Imparato Stevedoring Corp., 113
N.L.R.B. 883 (1955);
Squirt Distrib. Co., 92 N.L.R.B. 1667
(1951);
H. M. Newman, 85 N.L.R.B. 725 (1949). Even if this
approach would be appropriate for analogous § 301 and breach of
duty suits, it is not applicable here. Since the Union played no
part in Swift's alleged breach of contract, and since Swift took no
part in the Union's alleged breach of duty, joint liability for
either wrong would be unwarranted.
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
HARLAN join, concurring in the result.
1. In my view, a complaint by an employee that the union has
breached its duty of fair representation is subject to the
exclusive jurisdiction of the NLRB. It is a charge of unfair labor
practice.
See Miranda Fuel Co., 140 N.L.R.B. 181 (1962);
[
Footnote 2/1]
Local 12, United
Rubber Workers, 150 N.L.R.B. 312,
enforced, 368 F.2d
12 (C.A. 5th Cir.1966). [
Footnote
2/2] As is the case with most other
Page 386 U. S. 199
unfair labor practices, the Board's jurisdiction is preemptive.
Garner v. Teamsters Union, 346 U.
S. 485 (1953);
Guss v. Utah Labor Board,
353 U. S. 1 (1957);
San Diego Building Trades Council v. Garmon, 359 U.
S. 236 (1959);
Local 38, Constr. Laborers v.
Curry, 371 U. S. 542
(1963);
Plumbers' Union v. Borden, 373 U.
S. 690 (1963);
Iron Workers v. Perko,
373 U. S. 701
(1963);
Liner v. Jafco, Inc., 375 U.
S. 301 (1964).
Cf. Woody v. Sterling Alum. Prods.,
Inc., 365 F.2d 448 (C.A. 8th Cir 1966),
pet. for cert.
pending, No. 946, O.T. 1966. There is no basis for failure to
apply the preemption principle in the present case, and, as I shall
discuss, strong reason for its application. The relationship
between the union and the individual employee with respect to the
processing of claims to employment rights under the collective
bargaining agreement is fundamental to the design and operation of
federal labor law. It is not "merely peripheral," as the Court's
opinion states. It
"presents difficult problems of definition of status, problems
which we have held are precisely 'of a kind most wisely entrusted
initially to the agency charged with the day-to-day administration
of the Act as a whole.'"
Iron Workers v. Perko, supra, 373 U.S. at
373 U. S. 706.
Accordingly, the judgment of the Supreme Court of Missouri should
be reversed and the complaint dismissed for this reason and on this
basis. I agree, however, that, if it were assumed that jurisdiction
of the subject matter exists, the judgment would still have to be
reversed because of the use by the Missouri court of an improper
standard for measuring the union's duty and the absence of evidence
to establish that the union refused further to process Owens'
grievance because of bad faith or arbitrarily.
2. I regret the elaborate discussion in the Court's opinion of
problems which are irrelevant. This is not an action by the
employee against the employer, and the
Page 386 U. S. 200
discussion of the requisites of such an action is, in my
judgment, unnecessary. The Court argues that the employee could sue
the employer under L.M.R.A. § 301, and that to maintain such an
action the employee would have to show that he has exhausted his
remedies under the collective bargaining agreement, or,
alternatively, that he was prevented from doing so because the
union breached its duty to him by failure completely to process his
claim. That may be, or maybe all he would have to show to maintain
an action against the employer for wrongful discharge is that he
demanded that the union process his claim to exhaustion of
available remedies, and that it refused to do so. [
Footnote 2/3] I see no need for the Court to pass
upon that question, which is not presented here and which, with all
respect, lends no support to the Court's argument. The Court seems
to use its discussion of the employee-employer litigation as
somehow analogous to or supportive of its conclusion that the
employee may maintain a court action against the union. But I do
not believe that this follows. I agree that the NLRB's unfair labor
practice jurisdiction does not preclude an action under § 301
against the employer for wrongful discharge
Page 386 U. S. 201
from employment.
Smith v. Evening News Assn.,
371 U. S. 195
(1962). Therefore, Owens might have maintained an action against
his employer in the present case. This would be an action to
enforce the collective bargaining agreement, and Congress has
authorized the courts to entertain actions of this type. But his
claim against the union is quite different in character, as the
Court itself recognizes. The Court holds -- and I think correctly,
if the issue is to be reached -- that the union could not be
required to pay damages measured by the breach of the employment
contract, because it was not the union, but the employer, that
breached the contract. I agree; but I suggest that this reveals the
point for which I contend: that the employee's claim against the
union is not a claim under the collective bargaining agreement, but
a claim that the union has breached its statutory duty of fair
representation. This claim, I submit, is a claim of unfair labor
practice, and it is within the exclusive jurisdiction of the NLRB.
The Court agrees that "one of the available remedies [obtainable,
the Court says, by court action] when a breach of the union's duty
is proved" is "an order compelling arbitration." This is precisely
and uniquely the kind of order which is within the province of the
Board. Beyond this, the Court is exceedingly vague as to remedy:
"appropriate damages or equitable relief" are suggested as possible
remedies, apparently when arbitration is not available. Damages
against the union, the Court admonishes, should be gauged
"according to the damage caused by [its] fault" --
i.e.,
the failure to exhaust remedies for the grievance. The Court's
difficulty, it seems to me, reflects the basic awkwardness of its
position: it is attempting to force into the posture of a contract
violation an alleged default of the union which is not a violation
of the collective bargaining agreement, but a breach of its
separate and basic duty fairly
Page 386 U. S. 202
to represent all employees in the unit. This is an unfair labor
practice, and should be treated as such. [
Footnote 2/4]
3. If we look beyond logic and precedent to the policy of the
labor relations design which Congress has provided, court
jurisdiction of this type of action seems anomalous and
ill-advised. We are not dealing here with the interpretation of a
contract or with an alleged breach of an employment agreement. As
the Court in effect acknowledges, we are concerned with the
subtleties of a union's statutory duty faithfully to represent
employees in the unit, including those who may not be members of
the union. The Court -- regrettably, in my opinion -- ventures to
state judgments as to the metes and bounds of the reciprocal duties
involved in the relationship between the union and the employee. In
my opinion, this is precisely and especially the kind of judgment
that Congress intended to entrust to the Board, and which is well
within the preemption doctrine that this Court has prudently
stated. [
Footnote 2/5]
See
cases cited
supra, especially
Page 386 U. S. 203
the
Perko and
Borden cases, the facts of which
strongly parallel the situation in this case.
See also Linn v.
Plant Guard Workers, 383 U. S. 53,
383 U. S. 72
(1966) (dissenting opinion). The nuances of union employee and
union employer relationships are infinite and consequential,
particularly when the issue is as amorphous as whether the union
was proved guilty of "arbitrary or bad faith conduct," which the
Court states as the standard applicable here. In all reason and in
all good judgment, this jurisdiction should be left with the Board,
and not be placed in the courts, especially with the complex and
necessarily confusing guidebook that the Court now publishes.
Accordingly, I join the judgment of reversal, but on the basis
stated.
[
Footnote 2/1]
This decision of the NLRB was denied enforcement by the Court of
Appeals for the Second Circuit, but on a basis which did not decide
the point relevant here.
NLRB v. Miranda Fuel Co., 326
F.2d 172 (C.A.2d Cir.1963). Only one judge, Judge Medina, took the
position that the NLRB had incorrectly held violation of the duty
of fair representation to be an unfair labor practice. As an
alternative ground for decision, he held that the NLRB had not had
sufficient evidence to support its finding of breach of the duty.
Judge Lumbard agreed with this latter holding, and explicitly did
not reach the question whether breach of the duty is an unfair
labor practice. Judge Friendly dissented. He would have affirmed
the NLRB both on the sufficiency of the evidence and on the holding
that breach of the duty of fair representation is an unfair labor
practice as to which the NLRB can give relief.
[
Footnote 2/2]
The opinion by Judge Thornberry for the Fifth Circuit supports
the views expressed herein.
See also Cox, The Duty of Fair
Representation, 2 Vill.L.Rev. 151, 172-173 (1957); Wellington,
Union Democracy and Fair Representation: Federal Responsibility in
a Federal System, 67 Yale L.J. 1327 (1958).
[
Footnote 2/3]
Cf. my Brother BLACK's dissenting opinion in this case.
Cf. also Brown v. Sterling Alum. Prods. Corp., 365 F.2d
651, 656-657 (C.A. 8th Cir.1966),
cert. denied, post, p.
957.
Republic Steel Corp. v. Maddox, 379 U.
S. 650 (1965), does not pass upon the issue. The Court
states that "To leave the employee remediless" when the union
wrongfully refuses to process his grievance, "would . . . be a
great injustice." I do not believe the Court relieves this
injustice to any great extent by requiring the employee to prove an
unfair labor practice as a prerequisite to judicial relief for the
employer's breach of contract. Nor do I understand how giving the
employee a cause of action against the union is an appropriate way
to remedy the injustice which would exist if the union were allowed
to foreclose relief against the employer.
[
Footnote 2/4]
The Court argues that, since the employee suing the employer for
breach of the employment contract would have to show exhaustion of
remedies under the contract, and since he would for this purpose
have to show his demand on the union and, according to the Court,
its wrongful failure to prosecute his grievance, the union could be
joined as a party defendant, and since the union could be joined in
such a suit, it may be sued independently of the employer. But this
is a
non sequitur. As the Court itself insists, the suit
against the union is not for breach of the employment contract, but
for violation of the duty fairly to represent the employee. This is
an entirely different matter. It is a breach of statutory duty --
an unfair labor practice -- and not a breach of the employment
contract.
[
Footnote 2/5]
In a variety of contexts, the NLRB concerns itself with the
substantive bargaining behavior of the parties. For example: (a)
the duty to bargain in good faith,
see, e.g., Fibreboard Corp,
v. Labor Board, 379 U. S. 203
(1964); (b) jurisdictional disputes,
see, e.g., Labor Board v.
Radio Engineers, 364 U. S. 573
(1961); (c) secondary boycotts and hot cargo clauses,
see,
e.g., Orange Belt District Council of Painters No. 48 v. NLRB,
117 U.S.App.D.C. 233, 328 F.2d 534 (1964).
MR. JUSTICE BLACK, dissenting.
The Court today opens slightly the courthouse door to an
employee's incidental claim against his union for breach of its
duty of fair representation, only to shut it in his face when he
seeks direct judicial relief for his underlying and more valuable
breach of contract claim against his employer. This result follows
from the Court's announcement in this case, involving an employee's
suit against his union, of a new rule to govern an employee's suit
against his employer. The rule is that, before an employee can sue
his employer under § 301 of the L.M.R.A. for a simple breach of his
employment contract, the employee must prove not only that he
attempted to exhaust his contractual remedies, but that his attempt
to exhaust them was frustrated by "arbitrary, discriminatory, or .
. . bad faith" conduct on
Page 386 U. S. 204
the part of his union. With this new rule and its result, I
cannot agree.
The Court recognizes, as it must, that the jury in this case
found at least that Benjamin Owens was fit for work, that his
grievance against Swift was meritorious, and that Swift breached
the collective bargaining agreement when it wrongfully discharged
him. The Court also notes in passing that Owens
* has a separate
action for breach of contract pending against Swift in the state
courts. And, in
386 U. S. the
Court vigorously insists that "there is no reason to exempt the
employer from contractual damages which he would otherwise have had
to pay," that the "employee should have no difficulty recovering
these damages from the employer" for his "unrelated breach of
contract," and that "the employee [is] assured of direct recovery
from the employer." But this reassurance in Part IV gives no
comfort to Owens, for Part IV is based on the assumption that the
union breached its duty to Owens, an assumption which, in
386 U. S. the
Court finds unsupported by the facts of this case. What this all
means, though the Court does not expressly say it, is that Owens
will be no more successful in his pending breach of contract action
against Swift than he is here in his suit against the union. For
the Court makes it clear "that the question of whether a union has
breached its duty of fair representation will . . . be a critical
issue in a suit under L.M.R.A. § 301," that "the wrongfully
discharged employee may bring an action against his employer" only
if he "can prove that the union . . . breached its duty of fair
representation in its handling of the employee's grievance," and
"that the employee, as part and parcel of his § 301 action,
finds
Page 386 U. S. 205
it necessary to prove an unfair labor practice by the union."
Thus, when Owens attempts to proceed with his pending breach of
contract action against Swift, Swift will undoubtedly secure its
prompt dismissal by pointing to the Court's conclusion here that
the union has not breached its duty of fair representation. Thus,
Owens, who now has obtained a judicial determination that he was
wrongfully discharged, is left remediless, and Swift, having
breached its contract, is allowed to hide behind, and is shielded
by, the union's conduct. I simply fail to see how it should make
one iota of difference, as far as the "unrelated breach of
contract" by Swift is concerned, whether the union's conduct is
wrongful or rightful. Neither precedent nor logic supports the
Court's new announcement that it does.
Certainly nothing in
Republic Steel Corp. v. Maddox,
379 U. S. 650,
supports this new rule. That was a case where the aggrieved
employee attempted to "completely sidestep available grievance
procedures in favor of a lawsuit."
Id. at
379 U. S. 653.
Noting that
"it cannot be said . . . that contract grievance procedures are
inadequate to protect the interests of an aggrieved employee until
the employee has attempted to implement the procedures and found
them so,"
ibid., the Court there held that the employee "must
attempt use of the contract grievance procedure,"
id. at
652, and "must afford the union the opportunity to act on his
behalf,"
id. at
379 U. S. 653.
I dissented on the firm belief that an employee should be free to
litigate his own lawsuit with his own lawyer in a court before a
jury, rather than being forced to entrust his claim to a union
which, even if it did agree to press it, would be required to
submit it to arbitration. And even if, as the Court implied,
"the worker would be allowed to sue after he had presented his
claim to the union and after he had suffered the inevitable
discouragement and delay which necessarily accompanies the union's
refusal
Page 386 U. S. 206
to press his claim,"
id. at
379 U. S. 669,
I could find no threat to peaceful labor relations or to the
union's prestige in allowing an employee to bypass completely
contractual remedies in favor of a traditional breach of contract
lawsuit for back pay or wage substitutes. Here, of course, Benjamin
Owens did not "completely sidestep available grievance procedures
in favor of a lawsuit." With complete respect for the union's
authority and deference to the contract grievance procedures, he
not only gave the union a chance to act on his behalf, but, in
every way possible, tried to convince it that his claim was
meritorious and should be carried through the fifth step to
arbitration. In short, he did everything the Court's opinion in
Maddox said he should do, and yet now the Court says so
much is not enough.
In
Maddox, I noted that the
"cases really in point are those which involved agreements
governed by the Railway Labor Act and which expressly refused to
hold that a discharged worker must pursue collective bargaining
grievance procedures before suing in a court for wrongful
discharge.
Transcontinental & Western Air, Inc. v.
Koppal, 345 U. S. 653;
Moore v.
Illinois Central R. Co., 312 U. S. 630."
379 U.S. at
379 U. S. 666.
I also observed that the Court's decision in
Maddox
"raised the overruling axe so high [over those cases] that its
falling is just about as certain as the changing of the seasons."
Id. at
379 U. S. 667.
In the latter observation I was mistaken. The Court has this Term,
in
Walker v. Southern R. Co., 385 U.
S. 196, refused to overrule in light of
Maddox
such cases as
Moore and
Koppal. Noting the long
delays attendant upon exhausting administrative remedies under the
Railway Labor Act, the Court based this refusal on "[t]he contrast
between the administrative remedy" available to Maddox and that
available to Walker. If, as the Court suggested, the availability
of an administrative remedy determines whether an employee can sue
without first
Page 386 U. S. 207
exhausting it, can there be any doubt that Owens, who had no
administrative remedy, should be as free to sue as Walker, who had
a slow one? Unlike Maddox, Owens attempted to implement the
contract grievance procedures, and found them inadequate. Today's
decision, following in the wake of
Walker v. Southern R.
Co., merely perpetuates an unfortunate anomaly created by
Maddox in the law of labor relations.
The rule announced in
Maddox, I thought, was a
"brainchild" of the Court's recent preference for arbitration. But
I am unable to ascribe any such genesis to today's rule, for
arbitration is precisely what Owens sought and preferred. Today the
Court holds that an employee with a meritorious claim has no
absolute right to have it either litigated or arbitrated. Fearing
that arbitrators would be overworked, the Court allows unions
unilaterally to determine not to take a grievance to arbitration --
the first step in the contract grievance procedure at which the
claim would be presented to an impartial third party -- as long as
the union decisions are neither "arbitrary" nor "in bad faith." The
Court derives this standard of conduct from a long line of cases
holding that
"[a] breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith."
What the Court overlooks is that those cases laid down this
standard in the context of situations where the employee's sole or
fundamental complaint was against the union. There was not the
slightest hint in those cases that the same standard would apply
where the employee's primary complaint was against his employer for
breach of contract and where he only incidentally contended that
the union's conduct prevented the adjudication, by either court or
arbitrator, of the underlying grievance. If the Court here were
satisfied with merely holding that, in this situation, the
employee
Page 386 U. S. 208
could not recover damages from the union unless the union
breached its duty of fair representation, then it would be one
thing to say that the union did not do so in making a good faith
decision not to take the employee's grievance to arbitration. But
if, as the Court goes on to hold, the employee cannot sue his
employer for breach of contract unless his failure to exhaust
contractual remedies is due to the union's breach of its duty of
fair representation, then I am quite unwilling to say that the
union's refusal to exhaust such remedies -- however nonarbitrary --
does not amount to a breach of its duty. Either the employee should
be able to sue his employer for breach of contract after having
attempted to exhaust his contractual remedies or the union should
have an absolute duty to exhaust contractual remedies on his
behalf. The merits of an employee's grievance would thus be
determined by either a jury or an arbitrator. Under today's
decision, it will never be determined by either.
And it should be clear that the Court's opinion goes much
further than simply holding that an employee has no absolute right
to have the union take his grievance to arbitration. Here, of
course, the union supervised the grievance into the fourth step of
the contract machinery and dropped it just prior to arbitration on
its belief that the outcome of arbitration would be unfavorable.
But limited only by the standard of arbitrariness, there was
clearly no need for the union to go that far. Suppose, for
instance, the union had a rule that it would not prosecute a
grievance even to the first step unless the grievance were filed by
the employee within 24 hours after it arose. Pursuant to this rule,
the union might completely refuse to prosecute a grievance filed
several days late. Thus, the employee, no matter how meritorious
his grievance, would get absolutely nowhere. And unless he could
prove that
Page 386 U. S. 209
the union's rule was arbitrary (a standard which no one can
define), the employee would get absolutely no consideration of the
merits of his grievance -- either by a jury, an arbitrator, the
employer, or by the union. The Court suggests three reasons for
giving the union this almost unlimited discretion to deprive
injured employees of all remedies for breach of contract. The first
is that "frivolous grievances" will be ended prior to
time-consuming and costly arbitration. But here, no one, not even
the union, suggests that Benjamin Owens' grievance was frivolous.
The union decided not to take it to arbitration simply because the
union doubted the chance of success. Even if this was a good faith
doubt, I think the union had the duty to present this contested,
but serious, claim to the arbitrator, whose very function is to
decide such claims on the basis of what he believes to be right.
Second, the Court says that allowing the union to settle grievances
prior to arbitration will assure consistent treatment of "major
problem areas in the interpretation of the collective bargaining
contract." But can it be argued that whether Owens was "fit to
work" presents a major problem in the interpretation of the
collective bargaining agreement? The problem here was one of
interpreting medical reports, not a collective bargaining
agreement, and of evaluating other evidence of Owens' physical
condition. I doubt whether consistency is either possible or
desirable in determining whether a particular employee is able to
perform a particular job. Finally, the Court suggests that its
decision "furthers the interest of the union as statutory agent." I
think this is the real reason for today's decision, which entirely
overlooks the interests of the injured employee, the only one who
has anything to lose. Of course, anything which gives the union
life and death power over those whom it is supposed to represent
furthers its "interest." I simply fail to see how
Page 386 U. S. 210
the union's legitimate role as statutory agent is undermined by
requiring it to prosecute all serious grievances to a conclusion or
by allowing the injured employee to sue his employer after he has
given the union a chance to act on his behalf.
Henceforth, in almost every § 301 breach of contract suit by an
employee against an employer, the employee will have the additional
burden of proving that the union acted arbitrarily or in bad faith.
The Court never explains what is meant by this vague phrase or how
trial judges are intelligently to translate it to a jury. Must the
employee prove that the union, in fact, acted arbitrarily, or will
it be sufficient to show that the employee's grievance was so
meritorious that a reasonable union would not have refused to carry
it to arbitration? Must the employee join the union in his § 301
suit against the employer, or must he join the employer in his
unfair representation suit against the union? However these
questions are answered, today's decision, requiring the individual
employee to take on both the employer and the union in every suit
against the employer and to prove not only that the employer
breached its contract, but that the union acted arbitrarily,
converts what would otherwise be a simple breach of contract action
into a three-ring donnybrook. It puts an intolerable burden on
employees with meritorious grievances, and means they will
frequently be left with no remedy. Today's decision, while giving
the worker an ephemeral right to sue his union for breach of its
duty of fair representation, creates insurmountable obstacles to
block his far more valuable right to sue his employer for breach of
the collective bargaining agreement.
* Owens died while the appeal of his case from the trial court
was pending. The administrator of his estate was substituted, and
is the respondent herein, though, for simplicity, is referred to
herein as Owens.