Clifford E. Clayton v. Itt Gilfillan, Etc., Clifford E. Clayton v. Itt Gilfillan, Etc.

Clayton, a discharged employee, appeals from a district court judgment dismissing his action against ITT-Gilfillan for wrongful discharge under section 301 of the Labor Management Relations Act ( 29 U.S.C. § 185 ) and against his union for breach of its duty to represent him. We affirm the dismissal in favor of the union, but reverse the judgment in favor of the employer.

For alleged misconduct not material here, ITT fired Clayton in February 1975. As a member of the United Auto Workers (UAW), Clayton was entitled under a collective bargaining agreement to seek reinstatement. He took the first step under the contract, a formal request for reinstatement, but the company denied his request. Clayton’s local union then filed a timely grievance, but again the company refused to reinstate him. The union representative next made timely demand under the terms of the collective bargaining agreement for arbitration of the grievance. For reasons not stated in the record, however, the union eventually withdrew the request for arbitration.

Clayton was notified of the local official’s decision not to press for arbitration. Under Article 33 of the union constitution, a member who is not…

concurring:

This circuit does appear to have endorsed, although not as a result of detailed analysis, the rule that “(f)ailure to exhaust internal union remedies (cannot) be urged by the employer as a defense in a suit by the employee for wrongful discharge,” Retana v. Apartment Elevator Operators Union, 453 F.2d 1018 , 1027 n. 16 (9th Cir. 1972); Keppard v. International Harvester Co., 581 F.2d 764 (9th Cir. 1978). I have some reservations as to the wisdom of this rule, but I agree the court’s disposition in this ease accords with the prior case law, and I therefore concur.

623 F.2d 563 104 L.R.R.M. (BNA) 2118 , 87 Lab.Cas. P 11,545 , 88 Lab.Cas. P 12,009 Clifford E. CLAYTON, Appellee, v. ITT GILFILLAN, etc., et al., Appellant. Clifford E. CLAYTON, Appellant, v. ITT GILFILLAN, etc., et al., Appellee. Nos. 77-2756, 77-2763. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1979. Decided April 14, 1980. Everett F. Meiners, Parker, Milliken, Clark & O'Hara, Los Angeles, Cal. (on brief), and Lawrence Rosenzweig, Los Angeles, Cal., argued, for appellants. John T. McTernan (argued), Margolis, McTernan, Scope, Sacks & Epstein, Los Angeles, Cal., on brief, for appelles; Elizabeth Spector, Los Angeles, Cal., argued. Appeal from the United States District Court for the Central District of California. Before GOODWIN and KENNEDY, Circuit Judges, and TAYLOR * , District Judge. GOODWIN, Circuit Judge: 1 Clayton, a discharged employee, appeals from a district court judgment dismissing his action against ITT-Gilfillan for wrongful discharge under section 301 of the Labor Management Relations Act ( 29 U.S.C. § 185 ) and against his union for breach of its duty to represent him. We affirm the dismissal in favor of the union, but…