Joseph MacOn v. Youngstown Sheet and Tube Company and United Steelworkers of America, Afl-Cio-Clc Case Brief

The pro se appellant appeals the order of the district court granting Youngstown Sheet and Tube Company’s motion for summary judgment and dismissing the complaint. We determine that the action taken by the district court amounted to an entry of summary judgment in favor of all defendants and on that basis we affirm.

I

The appellant, Joseph Macon, brought this action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that his employer, Youngstown Sheet and Tube Co. (hereinafter Company), had violated the collective bargain-, ing agreement between the Company and the appellant’s union by denying the appellant certain medical insurance payments. Further, the appellant alleges that the union, United Steelworkers of America, AFL-CIO-CLC (hereinafter Union), breached its duty of fair representation by failing to pursue a grievance filed against the Company as a result of the denial of the appellant’s insurance benefits.

The complaint was filed on July 24, 1978. The defendant Union filed an answer on September 15, 1978. 1 The appellant filed a reply on September 25, 1978. The defendant Company filed a motion to dismiss on October 16,1978. In its motion, the Company asserted that at the time the lawsuit was filed the plaintiff’s grievance was still pending before an arbitrator, 2 and that there \*860 fore the complaint should be dismissed because the plaintiff had failed to exhaust the grievance and arbitration provisions of the collective bargaining agreement. Both plaintiff and the Company subsequently filed affidavits and evidentiary material. The matter was referred to a U.S. Magistrate, who filed a report and recommendation that the Company’s motion to dismiss be treated as a motion for summary judgment and granted. The district court subsequently granted the Company’s motion for summary judgment and dismissed the complaint. At no time prior to entry of judgment had the defendant Union filed either a motion to dismiss or a motion for summary judgment. 3 A timely notice of appeal was filed on July 7, 1981.

II

With respect to the appellee Company, we affirm the order of the district court. An employee seeking a remedy for an alleged breach of the collective bargaining agreement must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under Section 301. Clayton v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, 451 U.S. 679, 681, 101 S.Ct. 2088, 2091, 68 L.Ed.2d 538 (1981). The rule has been followed in this Circuit. Orphan v. Furnco Construction Gorp., 466 F.2d 795, 798 (7th Cir.1972). There are three exceptions to this exhaustion rule; exhaustion is not required (1) where the conduct of the employer amounts to a repudiation of the contract, Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); (2) where the union has wrongfully refused to process a grievance, id.; and (3) where exhaustion of contractual remedies would be futile. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). In his report and recommendation the magistrate specifically found that none of these exceptions applied to the case at hand. The magistrate’s findings were approved by the district court and we hold that these findings are not clearly erroneous. F.R.C.P. 52(a). We therefore affirm the order of the district court granting the Company’s motion for summary judgment.

Ill

As noted above, the exhaustion rule applies to claims against the employee’s union as well as to claims against the employer. Under normal circumstances we would have no difficulty in holding that the appellant’s claim against the Union is also barred for failure to exhaust the grievance and arbitration provisions of the collective bargaining agreement. This case, however, does not present normal circumstances. Prior to entry of judgment, the Union never filed either a motion to dismiss or a motion for summary judgment. We must presume, therefore, that the district court acted sua sponte, and, because the order is ambiguous, we must determine whether the district judge dismissed the complaint against the Union or entered summary judgment in favor of the Union. We conclude that the actions amounted to a sua sponte entry of summary judgment in favor of the Union and we affirm the district court’s actions on that basis. 4

\*861 Most Circuits that have considered the issue hold that a district court does have the power to enter summary judgment sua sponte. Taunton Municipal Lighting Plant v. Department of Energy, 669 F.2d 710, 716 (Em.App.1982); Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434, 436 (6th Cir.1981); Standard Oil Co. of California v. United States, 685 F.2d 1337, 1346 (Ct.Cl.1982); 10 Wright & Miller, Federal Practice & Procedure: Civil § 2719 at 454-55. Contra, Matter of Hailey, 621 F.2d 169, 171 (5th Cir.1980). In this circuit Choudhry v. Jenkins, 559 F.2d 1085, 1089 (7th Cir.1977), certiorari denied, 434 U.S. 997, 98 S.Ct. 634, 54 L.Ed.2d 491, and Tamari v. Bache & Co. (Lebanon), 565 F.2d 1194, 1198 (7th Cir.1977), certiorari denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495, may both be read as holding that district courts do not have the power to enter summary judgment sua sponte. The decisions in this and other Circuits that hold that district courts lack the power to enter summary judgment sua sponte, however, have one feature which distinguishes them from the case at hand: in each case the party against whom summary judgment was entered did not have adequate notice and a fair opportunity to present evidence in opposition to the entry of summary judgment. Choudhry v. Jenkins, supra, 559 F.2d at 1089. 5 Here the claim raised by the Company in its motion to dismiss would be equally effective in barring the claim against the Union. Clayton v. UAW, supra, 451 U.S. at 681, 101 5. Ct. at 2091. The appellant had an adequate opportunity to argue in opposition to the motion to dismiss and to submit evidentiary material, and the appellant did so argue 6 and did submit evidentiary material. 7 Because the appellant did have an opportunity to submit evidentiary material in opposition to the Company’s motion and because the district court, in its disposition of the Company’s motion, must have determined that there were no issues of material fact and that the plaintiff’s claim was barred for failure to exhaust the grievance and arbitration procedures of the collective bargaining agreement, there is no reason why the court could not, on its own motion, grant to the Union the same relief afforded the Company. This was the procedure followed by the district court in Piemonte v. Chicago Board Options Exchange, Inc., 405 F.Supp. 711, 718 (S.D.N.Y.1975). We find \*862 this procedure appropriate to the case at hand and therefore affirm the order of the district court. 8

IV

As a concluding note, we emphasize the narrowness of the decision reached today. In this case the defense raised in the Company’s motion to dismiss was equally applicable to the Union, and the appellant had an adequate opportunity to oppose the motion. Further, in order to prove his claim against the Company, the appellant would have had to show that the Union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231 (1976). For this reason the magistrate, while considering the Company’s motion, expressly considered the appellant’s claim against the Union and found it meritless. Under these unusual circumstances, we conclude that the actions of the district court amounted to the entry of summary judgment in favor of all defendants, and the order of the district court is therefore affirmed.