The full case caption appears at the
end of this opinion. CUDAHY, Circuit Judge. When Randy Hammer, UAWmember and Chrysler machinist, arrived at work onMarch 25, 1997, Chrysler and union officialscalled him into a meeting, accused him of theft,immediately suspended him without pay, searchedhis locker and escorted him out of the plant.About a week later, Hammer was terminated. TheUAW filed a grievance on Hammer’s behalf, and aseries of meetings between Chrysler and unionofficials followed. Chrysler eventually admittederror and offered to reinstate Hammer on June 1with two weeks of back pay (plus a week ofvacation pay and a week of personal time pay).Hammer accepted the offer and was told by bothChrysler and the UAW that no further grievanceswould be filed and that the case was closed. Hewent back to work the next day. Hammer later discovered that Chrysler hadallegedly extended an offer of reinstatement justtwo weeks after his termination. He learned thathis union representatives had rejected the offerin order to leverage their negotiationsconcerning the reinstatement of several other UAWmembers who also were terminated after beingaccused of theft. Hammer sued his union–both theInternational and the Local–claiming it breachedits duty of fair representation in violation ofsec. 301 of the Labor Management Relations Act.Specifically, Hammer alleged that the UAW’sfailure to inform him of the offer, return hisphone calls and actively represent his interestshad resulted in lost wages (about eight weeks ofback pay, he says), damage to his reputation andemotional distress. The UAW moved to dismiss and,alternatively, for summary judgment on the groundthat Hammer had failed to exhaust his internalremedies. The district court granted summaryjudgment for the UAW holding that Hammer’sfailure to pursue UAW appeals processes doomedhis case. Hammer appeals. In Clayton v. UAW, 451 U.S. 679 (1981), theSupreme Court addressed the propriety ofrequiring exhaustion. It held that “where aninternal union appeals procedure cannot result inreactivation of the employee’s grievance or anaward of the complete relief sought . . .exhaustion will not be required with respect toeither the suit against the employer or the suitagainst the union.” Id. at 685. The Courtrefused, moreover, to impose a “universalexhaustion requirement” in cases in whichcomplete relief could result from internalprocesses and instead directed the lower courtsto use three factors in considering whether torequire exhaustion: first, whether union officials are so hostile tothe employee that he could not hope to obtain afair hearing on his claim; second, whether theinternal union appeals procedures would beinadequate either to reactivate the employee’sgrievance or to award him the full relief heseeks under sec. 301; and third, whetherexhaustion of internal procedures wouldunreasonably delay the employee’s opportunity toobtain a judicial hearing on the merits of hisclaim. If any of these factors are found toexist, the court may properly excuse theemployee’s failure to exhaust. Id. at 689. Consistent with the Supreme Court’sprescribed flexible approach, a court can excuseexhaustion if the plaintiff shows the futility ofpursuing internal remedies. See, e.g., Sosbe v.Delco Elec., 830 F.2d 83, 86 (7th Cir. 1987).This is a fact-specific inquiry, not limited tothe Supreme Court’s three factors. See, e.g.,Fulk v. United Transp. Union, 108 F.3d 113, 117(7th Cir. 1997); Frandsen v. Brotherhood of Ry.,Airline and Steamship Clerks, 782 F.2d 674, 682(7th Cir. 1986). It is well-settled, though, thata plaintiff must show that union hostility is sopervasive that it infects every step of theinternal appeals process. See, e.g., Sosbe, 830F.2d at 86. Absent a showing of futility, thisCircuit requires exhaustion where a plaintiffseeks equitable relief, such as the reinstatementof a grievance, see Miller v. General MotorsCorp., 675 F.2d 146, 149 (7th Cir. 1982); seealso Stevens v. United Bhd. of Carpenters, 20F.3d 720, 731 (7th Cir. 1994), and in cases inwhich a plaintiff seeks money damages. SeeTinsley v. United Parcel Serv., Inc., 665 F.2d778, 780 (7th Cir. 1981), so long as the internalprocesses can give complete relief. Hammer first argues that the district courtabused its discretion in imposing the exhaustionrequirement. He concedes that the UAW’s internalprocesses might have resulted in thereinstatement of the grievance, but claims thathe could not have obtained the relief he sought(money damages from the UAW rather than fromChrysler) even had he prevailed. He reads Claytonto suggest that exhaustion is not required incases such as this. Hammer is wrong on both thefacts and the law. Pursuant to the UAWConstitution, Article 32, the UAW could haveawarded Hammer damages if it found that it hadbreached its duty of fair representation. Hammersprinkles protestations of ignorance throughouthis arguments, claiming he was not aware of thescope of his internal remedies. Union members,however, have an affirmative duty to educatethemselves about the available internalprocedures. See, e.g., Miller, 675 F.2d at150.
[FOOTNOTE 1] Further, although Clayton does notmandate exhaustion, the policies underlyingexhaustion favor it here. UAW internal procedurescould ultimately have resulted in both moneydamages and the reinstatement of Hammer’sgrievance– complete relief and more. Where thedispute might be resolved privately and the unionmight be afforded an opportunity to interpret itsown governing document and provide robustprocesses, exhaustion is appropriate. SeeStevens, 20 F.3d at 732. Hammer next contends that, even if exhaustionis required, the district court should haveexcused it because the pursuit of internalappeals would have been futile. He focuses on hisLocal’s alleged hostility as evidence that allunion processes would have been stacked againsthim. Again, hostility must permeate every step ofthe internal appeals process to excuseexhaustion. See Sosbe, 830 F.2d at 86. The UAWConstitution provides for four layers of internalappeals, two at the local level, one to theinternational union and a final appeal to anindependent panel, the Public Review Board(PRB).
[FOOTNOTE 2] These available processes could havetaken Hammer’s case outside the allegedly hostileLocal, to the international union or even to thePRB. Hammer has not pointed out any evidencewhich could be construed to impugn the integrityor neutrality of either the International or thePRB. See Battle v. Clark Equip. Co., 579 F.2d1338, 1343 (7th Cir. 1978); Sosbe, 830 F.2d at86; accord, Wagner v. General Dynamics, 905 F.2d126, 128 (6th Cir. 1990) (in a case claiming thefutility of UAW internal appeals, the plaintiffmust show that even the PRB cannot fairly reviewhis claims); Seniority Research Group v. ChryslerMotor Corp., 976 F.2d 1185, 1189 (8th Cir. 1992)(same). Therefore, Hammer’s allegations of localhostility do not excuse his failure to exhaustthe internal processes, and the district court’sorder granting the UAW’s motion for summaryjudgment is AFFIRMED. :::FOOTNOTES:::
FN1 For the same reason, Hammer’s reliance argument–that he reasonably relied upon therepresentations of both Chrysler and the unionthat his grievance was closed–fails. See Miller,675 F.2d at 150.
FN2 A union member can choose to argue his finalappeal before the Convention Appeals Committee,a panel of high-ranking union officials, insteadof the PRB.
RANDY HAMMER, Plaintiff-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; AND ITS LOCAL UNION, NO. 550, Defendants-Appellees. No. 98-2389 United States Court of Appeals for the Seventh Circuit Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 97-1540-CM/S–Larry J. McKinney, Judge. Argued February 9, 1999–Decided May 10, 1999 Before Cudahy, Ripple, and Diane P. Wood, CircuitJudges.
