Bell, Jack v. DaimlerChrysler Corp ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2239 & 07-2263
JACK B ELL, et al.,
Plaintiffs-Appellants,
v.
D AIMLERC HRYSLER C ORP.,
Defendant-Appellee.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 0241—John Daniel Tinder, Judge.
A RGUED JANUARY 25, 2008—D ECIDED O CTOBER 29, 2008
Before F LAUM, R OVNER, and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Pursuant to section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185(a), the
plaintiffs-appellants brought suit in the district court al-
leging that defendant-appellee DaimlerChrysler Corpora-
tion (“Chrysler”) breached its contractual obligations to
certain workers laid off in the late 1970s and early 1980s
by failing to recall these workers for job openings at
Chrysler’s plants in Kokomo, Indiana. The district
court granted summary judgment in favor of Chrysler,
2 Nos. 07-2239 & 07-2263
reasoning in part that the plaintiffs had failed to exhaust
their intra-union remedies prior to bringing suit. Bell v.
Daimler Chrysler Corp., 2007 WL 1266773 (N.D. Ill. May 1,
2007). We agree and affirm.
I.
The plaintiffs are current or former employees of Chrys-
ler who, as of the late 1970s, were working at a Chrysler
plant in New Castle, Indiana. All of the plaintiffs were
members of the United Auto Workers, Local 371
(“Local 371”).
The late 1970s were not a happy time for Chrysler and its
workforce. Foreign automakers had made substantial
inroads into the U.S. automobile market during that
decade, and gasoline shortages and price increases in the
mid and late 1970s had made larger and less fuel-efficient
American cars increasingly unattractive to the American
consumer. Chrysler’s situation became so precarious
that it took $1.5 billion in federal loan guarantees to keep
the company out of bankruptcy. Many Chrysler workers
lost their jobs. Beginning in 1978 and continuing through
1980, Chrysler laid off hundreds of workers from its
New Castle plant. The plaintiffs were among those laid
off. The reduction in the New Castle workforce proved to
be long-lasting: not until the early 1990s did Chrysler
begin to make significant numbers of new hires at that
plant.
Chrysler and UAW were parties to a series of collective
bargaining agreements and accompanying side or “letter”
agreements that governed the terms of the plaintiffs’
Nos. 07-2239 & 07-2263 3
employment. There were more than seventy of these
letter agreements, which were separately collected in a
document entitled “Letters, Memoranda and Agreements”
and colloquially referred to as the “Book of Letters.” It
appears from the record that the Book of Letters was
updated and republished each time a new collective
bargaining agreement was finalized. Some but not all of
the letter agreements also were appended to the 1979
Master Agreement and its successor agreements. The
plaintiffs represent that the Book of Letters was not
distributed to union members, that they were unaware
of it at the time of their layoff, and that they did not
become aware of the Book of Letters until shortly
before this suit was filed in 2003.
Section 65(b) of the 1979 Master Agreement between
Chrysler and UAW accorded employees who had been
laid off “work opportunity” rights that gave the laid-off
workers priority over “off the street” applicants—typically,
people who had never before worked at Chrysler—for
any job openings at another Chrysler facility within the
same “labor market area,” which was circumscribed by
a radius of 50 miles from the plant where the employee
had worked. A series of successive letter agreements—
Numbers 11 (dated November 5, 1976), 64n (dated
October 25, 1979) and 85n (dated December 10,
1982)—expanded the re-employment rights of laid-off
workers beyond their labor market areas to include
openings at plants within the same state that were
more than 50 miles away from the plant where they had
formerly worked. That expanded range meant that
workers who had been laid off from the New Castle plant
had work opportunity rights at Chrysler’s multiple plants
4 Nos. 07-2239 & 07-2263
in Kokomo, Indiana, which was more than 50 miles
from the New Castle plant. The plaintiffs aver that they
were not aware of these extended rights at the time of
their layoff or in the ensuing years because the relevant
letter agreements were not attached to the collective
bargaining agreements in force during those years
and because the Book of Letters had not been provided
to them.
Between January 1, 1984, and December 31, 1987, while
the plaintiffs were still on layoff from their jobs at the
New Castle facility, Chrysler hired 775 or more people off
the street to work at its Kokomo plants. Contrary to the
terms of Letter Agreements 11, 64n, and 85n, these jobs
were not first offered to the plaintiffs. For purposes of
summary judgment below, Chrysler conceded that it
had violated the plaintiffs’ work opportunity rights in
making these off-the-street hires.1 Chrysler’s failure to
offer the Kokomo jobs to the plaintiffs had lasting effects
beyond the loss of particular employment opportunities.
1
There is a dispute between the parties over whether employ-
ees were required within forty-five days of their layoff to sign
letters expressing interest in employment at other plants in
order to preserve their work opportunity rights. Many of the
plaintiffs, evidently, did not such sign such letters. But we
need not decide whether the failure to execute such letters
precludes the plaintiffs from claiming a violation of their
work opportunity rights. As we have just noted, Chrysler
has acknowledged, for purposes of summary judgment, that
the off-the-street hirings at its Kokomo plants violated the
plaintiffs’ work opportunity rights.
Nos. 07-2239 & 07-2263 5
A laid-off employee’s work opportunity rights were
limited to a window of time equal to the length of his
employment with Chrysler or five years, whichever
was greater. If an individual did not return to employ-
ment with Chrysler during that recall window, he lost
the seniority he had accumulated with the company
prior to his layoff, which deprived him of his entitlement
to priority over “off the street” applicants for subse-
quent job openings and had a deleterious effect on his
retirement benefits. Thus, although many of the plain-
tiffs eventually were re-employed by Chrysler, because
their re-employment took place outside of the recall
window, they lost their seniority and the benefits
attendant to that seniority.
As the plaintiffs’ work opportunity rights arose from
various agreements between Chrysler and UAW, disputes
over those rights were subject to a contractually-specified
grievance and arbitration process. That process consisted
of multiple “steps” which ultimately culminated in
binding arbitration if the dispute was not resolved
between the parties.
Although rumors and disgruntlement regarding Chrys-
ler’s off-the-street hiring in Kokomo abounded
among UAW members in the 1980s and 1990s, not until
April 2002 did Local 371 challenge the hiring as a viola-
tion of Chrysler’s contractual obligations. That month, the
Local filed two grievances asserting that Chrysler had
disregarded the work opportunity rights of its laid-off
workers beginning in 1984, when it started to hire
workers off the street at its Kokomo facilities. Not until
6 Nos. 07-2239 & 07-2263
that time, the plaintiffs assert, did they realize that the
hiring was contrary to the terms of the various letter
agreements between Chrysler and UAW. But the
belated filing of these grievances was apparently trig-
gered (at least in part) by the success an individual union
member had achieved the preceding month after com-
plaining to his Congressman and the Department of
Veterans Affairs. Ronnie Lough, like other members of
Local 371, had been laid off from the New Castle plant
in 1979. Lough later served in the Navy from 1982 until
1986. Upon his discharge, he sought re-employment
with Chrysler and asked that his time in the armed
services be recognized as a military leave of absence
and that he be rehired by the company; but Lough was
advised that there were still other workers with greater
seniority in the queue ahead of him awaiting recall. Lough
eventually was able to return to work at the New Castle
facility, but by this time his recall window had closed and
he had lost his seniority as a result. Lough complained
to his Congressman about his loss of seniority, noting
that Chrysler had been hiring people with lesser or no
seniority both before and after his 1986 attempt at re-
employment. His Congressman forwarded the com-
plaint to Veterans Affairs. After the Veterans Employment
and Training Services looked into the matter, Lough’s
original seniority date was reinstated as of March 12, 2002.
The two grievances filed on behalf of the plaintiffs were
presented to Chrysler’s labor relations representatives.
Chrysler denied both grievances as untimely at the
second step of the contractual grievance procedure. Local
371 appealed the grievances through step 4 and thence
Nos. 07-2239 & 07-2263 7
to what is described as the Appeal Board Step of the
process, where the two grievances were consolidated. At
that stage of the grievance process, the duty fell to inter-
national union representative Paul “Pete” Cutway to
investigate the grievances, discuss them with company
representatives, and decide whether to pursue them
further to arbitration. After looking into the grievances,
Cutway decided to withdraw them for multiple reasons.
First, Cutway believed that the grievances were
untimely, given that violations of laid-off employees’
work opportunity rights had been discussed among
union members since the mid-1980s but no grievance
had been filed until 2002. Cutway was aware of Lough’s
successful grievance and had suggested to Chrysler
representatives that the belated restoration of Lough’s
seniority had “opened a can of worms”; but Cutway
ultimately was persuaded by Chrysler’s position that
it was Lough’s status as a veteran of the armed services,
and not his layoff from the New Castle plant, that had
triggered the restoration of his seniority. Second, Cutway
believed that the grievances posed insurmountable prob-
lems of proof: he could find little or nothing in the way
of a paper trail that would enable him to show that Chrys-
ler had, in fact, violated the work opportunity rights
of laid-off employees in hiring people more than 15 years
earlier, and a number of key witnesses to the relevant
events, including past presidents of Local 371, had either
died or retired from the company. These circumstances
persuaded Cutway that UAW was unlikely to prevail at
arbitration, and for that reason the grievances were
withdrawn “without precedent” as of January 10, 2003.
8 Nos. 07-2239 & 07-2263
Pursuant to section 30(b) of the 1999 Master Agreement
in effect at that time, grievances can be withdrawn either
“without prejudice” or “without precedent.” A grievance
that is withdrawn without prejudice may be reinstated
within three months of the withdrawal. A grievance
withdrawn without precedent may not be reinstated
(and so the withdrawal is with prejudice), but the with-
drawal may not serve as binding precedent in another case.
Local 371 was advised of the withdrawal of the griev-
ances by a letter dated February 4, 2003. That same day,
when the grievances were discussed at a plant-wide
meeting, General Holiefield, the administrative assistant
to UAW’s International Vice-President, told workers
that the issue was “dead.”
The decision to withdraw a grievance is one that can be
appealed. Article 33 of the 2002 UAW Constitution pro-
vides that such an appeal may be initiated either by a
local organization or by an individual union member.
Indeed, Section 5 of Article 33 requires that such
internal appeals be pursued before an aggrieved
individual or local seeks relief outside of the union:
It shall be the duty of any individual or body, if ag-
grieved by any action, decision or penalty imposed, to
exhaust fully the individual or body’s remedy and all
appeals under this Constitution and the rules of this
Union before going to a civil court or governmental
agency for redress.
Where, as here, it is the decision of an international
union representative that is being challenged, the route of
appeal is first to the UAW’s International Executive Board
Nos. 07-2239 & 07-2263 9
(via the UAW International President) and then either to
the Convention Appeals Committee (comprised of repre-
sentatives from each of UAW’s regions) or, where appro-
priate, to the Public Review Committee (comprised of
independent union “outsiders”). Such an appeal must be
commenced within thirty days of the decision being
challenged.
Letter Agreement Number 7 between Chrysler and
UAW, dated October 28, 1985, confirms that a grievance
can be reinstated by means of such internal union
appeals, even as the agreement acknowledges the parties’
shared interest in finality:
During negotiations of the National Production and
Maintenance, Office and Clerical, Engineering and
Parts Depot Agreements, the parties acknowledged the
desirability of ensuring prompt, fair and final resolu-
tion of employee grievances. The parties also recog-
nized that the maintenance of a stable, effective and
dependable grievance procedure is necessary to
implement the foregoing principle to which they
both subscribe. Accordingly, the parties view any
attempt to reinstate a grievance properly disposed of
as contrary to the purpose for which the grievance
procedure was established and violative of the funda-
mental principles of collective bargaining.
However, in those instances where the International
Union, UAW, by either its (i) Executive Board,
(ii) Public Review Board, or (iii) Constitutional Con-
vention Appeals Committee has reviewed the dis-
position of a grievance and found that such dis-
10 Nos. 07-2239 & 07-2263
position was improperly effected by the Union or a
Union representative involved, the UAW Chrysler
Department may inform the Corporate Labor Relations
Staff in writing that such grievance is reinstated in
the grievance procedure at the step at which the
original disposition of the grievance occurred.
This letter agreement thus serves to confirm that not
only may a union local or one of its members appeal the
withdrawal of a grievance as set forth in Article 33 of the
UAW Constitution, but that such an appeal can result
in the reinstatement of a grievance. In this sense, Letter
Agreement Number 7 serves to qualify Section 30(b) of the
1999 Master Agreement by making clear that a grievance
withdrawn without precedent can be reinstated through
UAW’s appellate process (if by no other means) when a
reviewing body concludes that the decision to with-
draw the grievance was in some respect inappropriate.
However, after the withdrawal of their grievances was
announced, none of the plaintiffs filed an appeal within
the thirty-day time period specified by Article 33. Instead,
on February 18, 2003, many of the plaintiffs filed suit
against Chrysler in federal court. Another group of plain-
tiffs filed a second, similar lawsuit against the company
and the union three months later. An amended complaint
in the second suit, which added three additional plaintiffs,
brought the total number of plaintiffs to 223. The two
suits were consolidated in the district court.
Ultimately, the district court entered summary judg-
ment in favor of Chrysler. As the court noted, union
members, before they may bring suit against their em-
Nos. 07-2239 & 07-2263 11
ployer under section 301 of the LMRA for breach of a
collective bargaining agreement, ordinarily are required to
exhaust whatever private remedies are available to
address their grievances, including intra-union remedies.
2007 WL 1266773, at *5 (citing Clayton v. UAW, 451 U.S.
679, 685, 101 S. Ct. 2088, 2093 (1981)). By failing to
appeal UAW’s decision to withdraw their grievances, the
plaintiffs had not complied with this requirement. The
court considered each of the three factors that the
Supreme Court and this court have identified as relevant
to whether the failure to exhaust may be excused: hostility
of union officials that would render exhaustion futile,
inadequacy of the internal appeal procedure to obtain
reinstatement of the grievance or the full range of relief
otherwise available under section 301, and whether
pursuit of internal appeals would unduly delay a
hearing on the merits of the plaintiff’s complaint. Id. at *5-
*6 (citing Hammer v. UAW, 178 F.3d 856, 858 (7th Cir.
1999)). No argument was made as to the possibility of
undue delay, the third factor. Although one of the two
groups of plaintiffs argued futility—relying on testimony
that some of those rehired had been told by local and
international union officials that they should be glad
they got their jobs back, and on the statement of the
international union representative at a union meeting
that the issue was “dead” and should be pursued no
further—the court found the limited evidence they sub-
mitted insufficient to raise a triable issue on that point. Id.
at *6. “This minimal effort to support the contention of
futility is not enough to begin to approach what is neces-
sary to show that the internal appeal process was
12 Nos. 07-2239 & 07-2263
poisoned to the point that any attempt to appeal would
have been in vain.” Id. And although all of the plaintiffs
contended that an internal appeal could not have
obtained the reinstatement of their grievances once they
had been withdrawn without precedent—and therefore
with prejudice—the court found that contention belied
by the express terms of Letter Agreement 7, which in
allowing the reinstatement of grievances via the appel-
late process drew no distinction between grievances
withdrawn with prejudice and those withdrawn
without prejudice. Id. at *6-*7 The plaintiffs did suggest
in passing that union leaders had not apprised them of
their right to appeal the withdrawal decision, but the
court noted that union members are charged with knowl-
edge of the contents of such freely available documents
as a union’s constitution. Id. at *7. Accordingly, the
court found that the plaintiffs’ failure to exhaust their
internal remedies was unexcused and that, consequently,
they were foreclosed from seeking relief in federal court. Id.
II.
Although the plaintiffs have named only Chrysler as a
defendant, their lawsuits unavoidably implicate UAW and
its decision to withdraw their grievances. A section 301
lawsuit is an exception to a national labor policy that
favors private rather than judicial resolution of disputes
arising under collective bargaining agreements. Republic
Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S. Ct. 614, 616-
17 (1965). Litigation is therefore considered the last resort
in resolving such disputes. E.g., Vail v. Raybestos Prods. Co.,
Nos. 07-2239 & 07-2263 13
533 F.3d 904, 908 (7th Cir. 2008). Chrysler and UAW have
contracted to resolve most of their disputes through a
grievance and arbitration process. Union members must
avail themselves of these dispute-resolution mechanisms
before turning to the courts for relief. Id. “Otherwise, the
judiciary may marshal its scare resources to resolve
disputes that the parties could have resolved privately.”
Id. And had UAW taken the plaintiffs’ grievances to
arbitration, the plaintiffs and the company both would
have been bound by the result subject only to extremely
narrow judicial review. See DelCostello v. Int’l Brotherhood
of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 2290
(1983); e.g., Dexter Axle Co. v. Int’l Ass’n of Machinists &
Aerospace Workers, 418 F.3d 762, 768 (7th Cir. 2005). In fact,
however, UAW opted to drop the plaintiffs’ grievances
rather than take them to arbitration. It was that decision
that opened the door to this suit. For Vaca v. Sipes, 386
U.S. 171, 185-87, 87 S. Ct. 903, 914-15 (1967), and its prog-
eny recognize that a union owes a fiduciary duty to
represent its members fairly; and when the union fails in
that obligation and mishandles a member’s grievance
against his employer, the aggrieved union member is
entitled to seek relief in federal court. See DelCostello, 462
U.S. at 164, 103 S. Ct. at 2290. This is what gives rise to
the hybrid nature of a section 301/fair representation
lawsuit: the plaintiff is claiming that the employer has
violated the collective bargaining agreement, but he is
pursuing that claim in a judicial rather than a private
forum because he is also claiming that the union has
breached its duty of fair representation vis-à-vis that
claimed violation. See ibid. These two claims “are inex-
14 Nos. 07-2239 & 07-2263
tricably interdependent.” Id. at 164-65, 103 S. Ct. at 2291(internal quotation marks and citations omitted). Whether
the plaintiff has sued his employer, his union, or both,
in order to recover from either of them he must prove
that his union breached its fiduciary obligation and that
his employer breached the collective bargaining agree-
ment. Id. at 165, 103 S. Ct. at 2291.
A claim that a union has breached its duty to fairly
represent one of its members presumes that the union
has been given a complete opportunity to pursue that
member’s grievance. See Republic Steel, 379 U.S. at 652-53,
85 S. Ct. at 616. Generally speaking, a member will not
be heard to complain in court that his union breached
its duty of fair representation unless he has first presented
his grievance to the union and, if rebuffed, exhausted any
and all of the internal union appeals available to him—so
long as such appeals could result either in granting
him complete relief or in the reinstatement of his griev-
ance. Clayton, 451 U.S. at 692-93, 101 S. Ct. at 2097. The
qualification stems from the fact that intra-union
remedies are the sole province of the union; they are
designed to settle disputes between a union and its mem-
bers. See id. at 695-96, 101 S. Ct. at 2098-99. As such, intra-
union remedies are distinct from the mechanisms
specified by a collective bargaining agreement for
resolving disputes between the union and the employer,
and requiring a union member to exhaust his internal
union remedies before filing suit will not in all instances
further the national interest in the private resolution of
disputes arising from collective bargaining agreements.
Ibid. That interest will not be served, for example, when
Nos. 07-2239 & 07-2263 15
the exhaustion of intra-union remedies holds out no
prospect of meaningful relief to the plaintiff. Ibid. However,
the interest will be served when there is a reasonable
possibility that a member’s grievance may be resolved
through available intra-union remedies, either by reinstat-
ing his grievance (and thus giving him another shot at
relief through the grievance-arbitration procedure) or by
directly granting him the relief he seeks. “In either case,
exhaustion of internal remedies could result in final
resolution of the employee’s contractual grievance
through private rather than judicial avenues.” Id. at 692,
101 S. Ct. at 2097; see also Miller v. General Motors Corp.,
675 F.2d 146, 148 (7th Cir. 1982).
The decision whether to dismiss a section 301 suit for
failure to exhaust internal union remedies is one com-
mitted to the district court’s discretion. E.g., Arnold v.
United Mine Workers of Am., 293 F.3d 977, 979 (7th Cir.
2002). Among the (non-exclusive) factors bearing on
that decision are: (1) whether the union has manifested
such hostility to the plaintiff’s grievance as to render
exhaustion of his internal appeal rights futile, (2) whether
the internal union appeals procedures are inadequate
either to reactivate the grievance or to result in complete
relief to the plaintiff, and (3) whether demanding ex-
haustion would cause undue delay in the resolution of
the plaintiff’s complaint. Clayton, 451 U.S. at 689, 101 S.
Ct. at 2095; see also Hammer v. UAW, supra, 178 F.3d at
858; Fulk v. United Transp. Union, 108 F.3d 113, 116 (7th
Cir. 1997). The plaintiffs in this case have relied on the
first and second of these factors, but not the third. We
must consider whether the district court abused its dis-
16 Nos. 07-2239 & 07-2263
cretion in concluding that neither factor excused the
plaintiffs’ failure to exhaust their union remedies before
bringing suit. “A court abuses its discretion when it
resolves a matter in a way that no reasonable jurist would,
or when its decision strikes us as fundamentally wrong,
arbitrary, or fanciful.” United States v. Paul, 542 F.3d
596, 599 (7th Cir. 2008). But, keeping in mind that the
district court resolved this case on summary judgment,
we must also consider whether the evidentiary record
reflects any material dispute as to the relevant facts
that might require a trial, or whether the district court
committed any legal error in evaluating those facts.
Our review on those matters is, of course, de novo. E.g.
Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir.
2008).
To begin, there is no dispute that there were avenues of
appeal open to the plaintiffs after international union
representative Cutway made the decision to withdraw
their grievances. Article 33 of the UAW constitution
describes an appellate process for review of the decisions
of international representatives, makes clear that such
appeals may be taken either by a union local or by an
individual union member, and allows thirty days for
such an appeal to be taken. It is undisputed that the
plaintiffs made no efforts to take such an appeal before
they repaired to federal court. In short, they did not
exhaust the appeals that were available to them to chal-
lenge Cutway’s decision to withdraw their grievances.
Invoking the second of the three Clayton factors, how-
ever, the plaintiffs make two threshold arguments
Nos. 07-2239 & 07-2263 17
which relate to the adequacy of the appellate process
available to them. Each of these arguments has to do in
one way or another with Letter Agreement 7, which reveals
that a grievance withdrawn by a union official can be
reinstated pursuant to the appellate process described
in Article 33. The first of these is procedural: they
contend that Chrysler brought Letter Agreement 7 to the
district court’s attention too late in the summary judg-
ment briefing below. Because Chrysler did not cite Letter
Agreement 7 until it filed its reply memorandum in
support of its motion for summary judgment, the
plaintiffs contend that they were deprived of the opportu-
nity to respond to any argument based on that letter
agreement and for that reason the district court should
have ignored it. They go on to argue that an integration
clause in the 1999 collective bargaining agreement pre-
cludes Chrysler from relying on any side agreement akin
to Letter Agreement 7.
The procedural argument—that the plaintiffs were
caught by surprise when Chrysler first cited Letter Agree-
ment 7 in its reply memorandum—loses its force in the
face of Rule 56.1(d) of the Southern District of Indiana’s
local rules. That rule gives a nonmovant seven days in
which to file a surreply when the party seeking summary
judgment has cited new evidence in its reply brief; leave
of court is not required to file such a surreply. Thus, the
plaintiffs were not deprived of the chance to respond to
Letter Agreement 7. Indeed, they are silent as to why
the opportunity to file a surreply was not sufficient to
address Letter Agreement 7. And for what it is worth, our
review of the record satisfies us that Chrysler’s belated
18 Nos. 07-2239 & 07-2263
citation of Letter Agreement Number 7 was a natural
and reasonable response to what the plaintiffs had
argued in their memorandum in opposition to the
motion for summary judgment. See Hardrick v. City of
Bolingbrook, 522 F.3d 758, 763 (7th Cir. 2008).2
Plaintiffs’ invocation of the integration clause in the
collective bargaining agreement poses a more intriguing
2
Chrysler argued in its motion for summary judgment that
pursuant to Article 33 of the UAW Constitution, there was an
appeals procedure available to the plaintiffs to challenge the
decision to withdraw their grievances; and the company cited
Cutway’s deposition testimony for the notion that a successful
appeal could have reinstated their grievances at the step of the
grievance procedure at which they had been withdrawn. R. 73
at 32. Cutway in turn had cited the collective bargaining
agreement for the proposition that the plaintiffs’ grievances
could have been reactivated. Cutway Dep. 109. In response, the
plaintiffs cited section 30(b) of the 1999 collective bargaining
agreement, which states that “[i]f a grievance is withdrawn
without precedent it may not be reinstated . . . .” R. 111 at 18-19.
That argument is what prompted Chrysler to cite Letter Agree-
ment 7 in its reply memorandum in support of its contention
that the grievances could have been reinstated notwith-
standing section 30(b) of the collective bargaining agreement.
R. 119 at 11-12; R. 120 Ex. 8. We note that plaintiffs do not
contend on appeal that section 30(b) either conflicts with or
restricts the relief available under Letter Agreement 7. They
argue only that the integration clause of the collective bargain-
ing agreement effectively nullifies Letter Agreement 7 and
consequently leaves section 30(b) unmodified, such that their
grievances, withdrawn without precedent, could not have
been reinstated. Plaintiffs’ opening brief at 15.
Nos. 07-2239 & 07-2263 19
challenge to Letter Agreement 7, but it is not one that
we need to resolve. The integration clause (section 115 of
the 1999 Master Agreement) was not cited to the district
court below, and so we do not have the benefit of the
district court’s thinking on that question.3 The appellate
briefing on this point is less than complete: neither
party has cited any authority on such clauses, let alone
authority that would shed light on the reach or limits of
such clauses vis-à-vis collective bargaining agreements
that have been supplemented over long periods of time
by many written side agreements. The patent irony of the
plaintiffs’ reliance on the integration clause is that their
own claim depends upon the validity of such side agree-
ments, for it was Letter Agreements 11, 64n, and 85n
that expanded their work opportunity rights to include
plants that were more than 50 miles away from the New
Castle plant from which they had been laid off—including
the Kokomo plants. Yet they do not acknowledge the
inconsistency between this argument and their theory
of the case, nor, again, do they cite any case law that would
give us some guidance as to which letter agreements, if
any, might be recognized. The failure to develop this
argument in any meaningful way leads us to conclude
that the plaintiffs have waived it. See, e.g., Argyropoulos v.
City of Alton, 539 F.3d 724, 739 (7th Cir. 2008).
3
Normally, arguments not raised in the district court in civil
cases are waived. E.g., Metzger v. Ill. State Police, 519 F.3d 677,
681-82 (7th Cir. 2008). Chrysler itself has waived any such
contention, however, by not making it here. See, e.g., Cromeens,
Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th
Cir. 2003).
20 Nos. 07-2239 & 07-2263
Alternatively, the plaintiffs contend that even if they
could have achieved the reinstatement of their griev-
ances by appealing Cutway’s decision to withdraw them,
the appeals available to them were nonetheless
inadequate because their grievances, if reinstated, could
not have afforded them complete relief. They point out
that Letter Agreement 7, while providing for the rein-
statement of grievances, also provides that the company
would not be liable for damages or back pay. They add
that, in any event, nothing in either Letter Agreement 7
or elsewhere indicates that further pursuit of their griev-
ances could have corrected the loss of seniority and other
benefits that the plaintiffs suffered when their work
opportunity rights were violated.
But the plaintiffs are mistaken in thinking that they
need not exhaust internal union appeals that do not hold
out the prospect of complete relief. Union members are
not excused from exhausting the appeals available to
them simply because they cannot obtain all of the
relief they seek. Clayton expressly (and repeatedly) states
that appeals which can result in either the reactivation of
a grievance or the provision of full relief must ordinarily
be exhausted. 451 U.S. at 685, 692, 695, 696, 101 S. Ct. at
2093, 2097, 2098, 2099. So long as intra-union appeals
can result in the reinstatement of a grievance, such that
a plaintiff can obtain whatever remedies are available
within the negotiated process for revolving disputes, a
union member retains the duty to exhaust such appeals
before bringing suit. That was our express holding in
the Miller decision more than twenty-five years ago. Miller
v. General Motors Corp., supra, 675 F.2d at 149. As we
Nos. 07-2239 & 07-2263 21
have said, in view of the express terms of Letter Agree-
ment 7, the plaintiffs’ grievances could have been rein-
stated after Cutway decided to withdraw them by
means of a successful internal appeal.
The plaintiffs’ principal contention on appeal is that
they were unaware of Letter Agreement 7 and thus had no
idea that, contrary to section 30(b) of the collective bar-
gaining agreement, they could obtain the reinstatement of
their grievances by appealing Cutway’s decision to with-
draw them. They emphasize that Letter Agreement 7 was
not among the agreements attached to the 1999 Master
Agreement in effect at the time their grievances were
withdrawn, so they were unaware of its existence, let
alone its terms. Additionally, they aver as they did
below that no union official ever apprised them that they
had the right to appeal Cutway’s decision to withdraw
their grievance and, if successful, to reverse that decision.
But the general rule is that ignorance of one’s internal
union remedies does not excuse the failure to pursue
such remedies before bringing suit, Hammer v. UAW, supra,
178 F.3d at 858-59; Miller, 675 F.2d at 149-50, and we
cannot say that the district court acted improperly in
applying that rule here. It is undisputed that Letter Agree-
ment 7 was not one of the side agreements that was
attached to the 1999 collective bargaining agreement and
that the plaintiffs were not aware of this agreement. But
our decisions in Hammer, 178 F.3d at 858-59, Miller, 675
F.2d at 149-50, and Newgent v. Modine Mfg. Co., 495
F.2d 919, 927-28 (7th Cir. 1974), overruled on other grounds
by Rupe v. Spector Freight Sys., Inc., 679 F.2d 685, 690 n.3
22 Nos. 07-2239 & 07-2263
(7th Cir. 1982), all state that union members have an
obligation of diligence in ascertaining what avenues of
relief are available to them within the union. Newgent
explained that a union member must make himself
aware of the remedies that are available to him even
when he has been told by a union officer that nothing
more can be done:
By becoming a member of the [u]nion, Newgent was
contractually obligated to exhaust union remedies
before resorting to a court action. Necessarily implied
in this obligation is the duty to become aware of the
nature and availability of union remedies. Newgent
was not justified in remaining in ignorance of the
provisions governing his own union or, in fact, of
relying on a statement by an officer that there was
nothing he could do.
495 F.2d at 927-28 (internal quotation marks, footnote, and
citations omitted). Miller held that an appeals process
outlined in a side agreement similar to Letter Agreement
7, which was also described in a union newsletter,
should have been known to union members. 675 F.2d at
150; see also Lewis v. Local Union No. 100 of Laborers’ Int’l
Union of N.A., 750 F.2d 1368, 1381 (7th Cir. 1984) (union’s
failure to provide plaintiff with copies of union constitu-
tion and collective bargaining agreement did not excuse
plaintiff from exhausting intra-union remedies); Monroe v.
UAW, 723 F.2d 22, 25-26 (6th Cir. 1983) (per curiam)
(rejecting plaintiff’s argument that exhaustion was not
required when he did not know his grievance could be
reactivated because that provision was set forth in a
Nos. 07-2239 & 07-2263 23
separate letter agreement of which he was unaware). The
record in this case does not reveal how widely dis-
tributed Letter Agreement 7 was, if at all. Yet, there is no
evidence that Letter Agreement 7, along with the other
seventy or so agreements in the Book of Letters, was
inaccessible to the plaintiffs had they sought it out. Chrys-
ler has also represented, without contradiction, that Letter
Agreement 7 had been in effect since 1985. Beyond aver-
ring that they were ignorant of Letter Agreement 7, the
plaintiffs have presented no evidence suggesting that
the agreement was unavailable to them and could not
have been located in the exercise of diligence. We do
know that within the thirty days the plaintiffs had to
appeal Cutway’s decision to withdraw their grievances,
the plaintiffs were aware that such agreements existed.
They attached several of these agreements, including
Letter Agreements 11 and 85n, to the federal complaints
they filed two weeks after Cutway decided to withdraw
their grievances and while they still had more than two
weeks left to file internal union appeals. Both complaints,
in fact, acknowledged the existence of a collection of the
letter agreements apart from those attached to the 1999
Master Agreement. See R. 15-2 at 5 ¶ 11, R. 15-3 at 8 ¶ 9.4
No later than that time, then, the plaintiffs were on
notice that there might be additional letter agreements
relevant to their grievances. They have offered no ex-
4
Indeed, the plaintiffs were likely aware of the Book of Letters
earlier than this, as the grievances filed on their behalf by Local
371 in April of 2002 expressly referred to the Book of Letters.
R. 15-2 at 26-27; R. 15-3 at 18-19.
24 Nos. 07-2239 & 07-2263
planation for their failure to locate and familiarize them-
selves with those agreements, including in particular
Letter Agreement 7. We do not foreclose the possibility
that, on a different record, we might conclude that
union members should not be charged with knowledge
of a side agreement that was not freely available to them.
Cf. Fulk, 108 F.3d at 118 (exhaustion of union remedies
may be excused due to the complexity and ambiguity of
the procedural path, where plaintiff has made a reason-
able effort to exhaust). But all that the plaintiffs have
shown here is that they were unaware of Letter Agreement
7, not that they could not have discovered it through
diligent efforts to determine the remedies available to
them.
Plaintiffs fare no better with their resort to the first
Clayton factor—union hostility that would have ren-
dered pursuit of internal appeals futile. For that proposi-
tion, the plaintiffs rely on the statement by Holiefield,
the administrative assistant to the international union’s
vice-president, that their grievances were a “dead issue”
and that no further action would be taken on their griev-
ances. Since the first route of appeal was to the interna-
tional union’s executive board, Holiefield’s statements
that the grievances were “dead” suggested to plaintiffs
that there was no point in pursuing them further. The
plaintiffs also point out that despite open discussions
of their grievances at union meetings, they received no
guidance from any UAW representatives as to the reme-
dies that remained for them to pursue. But as we stated
in Hammer, the hostility of union officials to a member’s
grievance will demonstrate futility only when that
Nos. 07-2239 & 07-2263 25
hostility “permeate[s] every step of the internal appeals
process . . . .” 178 F.3d at 859 (citing Sosbe v. Delco Elec’s,
830 F.2d 83, 86 (7th Cir. 1987)). As set forth above, the
plaintiffs were entitled to appeal the decision to with-
draw their grievances to three different bodies: the Ex-
ecutive Board, the Public Review Board, and the Con-
stitutional Convention Appeals Committee. Holiefield was
not a member of any of these bodies. Additionally, as
Cutway testified in his deposition, the members of
the Public Review Board are not employed by the interna-
tional union and do not fall under the jurisdiction of the
international union but rather operate independently of
the union. So even if Holiefield’s statement reflected the
view of the international union as a whole, the plaintiffs
have not shown why that hostility should be attributed to
the Public Review Board, which had the authority to
reinstate their grievances. See Hammer, 178 F.3d at
859 (noting the availability of “a final appeal to an inde-
pendent panel, the Public Review Board” as sufficient to
show internal appeals were not futile despite alleged
hostility of union local). Cf. LaPerriere v. UAW, 348 F.3d
127, 131-32 (6th Cir. 2003) (exhaustion excused where
both local and international unions expressed hostility to
member’s complaint). Moreover, we have repeatedly
rejected statements akin to Holiefield’s as sufficient to
show pervasive hostility. See Miller, 675 F.2d at 150-51(futility not shown where local union official who with-
drew plaintiff’s grievance told plaintiff that even if the
grievance were reinstated on appeal, the official would
simply withdraw it again); Baldini v. Local Union No. 1095,
UAW, 581 F.2d 145, 148 (7th Cir. 1978) (futility not
26 Nos. 07-2239 & 07-2263
shown despite international union official’s remark to
plaintiff that nothing more could be done for him), over-
ruled on other grounds by Rupe v. Spector Local Freight Sys.,
supra, 679 F.2d at 690 n.3.
III.
For all of these reasons, we conclude that the district
court did not abuse its discretion in dismissing the plain-
tiffs’ suit based on their failure to exhaust their inter-
nal remedies.
A FFIRMED.
10-29-08