HENRY J. NORTON vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

HENRY J. NORTON vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

369 Mass. 1

September 16, 1975 - October 30, 1975

Suffolk County

Present: TAURO, C.J., REARDON, QUIRICO, HENNESSEY, KAPLAN, & WILKINS, JJ.

An employee, acting independently of the union of which he is a member and not claiming a breach of its duty of fair representation, had no right to compel his employer to arbitrate a grievance under the procedure set out in the collective bargaining agreement between the employer and the union. [2]

BILL IN EQUITY filed in the Superior Court on October 18, 1973.

The Proceeding was heard by Mason, J.

The Supreme Judicial Court granted a request for direct appellate review.

Judith E. Diamond (Robert W. Harrington with her) for the plaintiff.

John J. Coffey for the defendant.

WILKINS, J. The plaintiff brought this action to compel the defendant authority, his employer, to arbitrate a grievance pursuant to the procedure set out in the collective bargaining agreement between the authority and the employee's union, Local Division 589, Amalgamated Transit Union (Union). The judge found that the Union did not request arbitration of the employee's grievance and that there was no agreement by the authority to arbitrate a grievance between it and the plaintiff individually.

Page 2

He ruled that the plaintiff had no right, acting independently of the Union, to compel arbitration and dismissed the action. We affirm.

The authority had no obligation to arbitrate a grievance which the employee, but not the Union, wished to arbitrate. The arbitration provision of the collective bargaining agreement gave the Union sixty days to request arbitration of a dispute which was not resolved at the conclusion of the fourth step in the grievance procedure. The Union made no such request. Indeed the record does not show that the employee made such a timely request, and, in the absence of such a request, this action to compel arbitration must fail.

Even if the plaintiff had made such a timely request, the general rule in such circumstances is that an employee, unsupported by his union, may not compel arbitration. See Vaca v. Sipes, 386 U.S. 171, 191-193 (1967); Stanley v. General Foods Corp., 508 F.2d 274, 275 (5th Cir. 1975); Carroll v. Brotherhood of R.R. Trainmen, 417 F.2d 1025, 1028 (1st Cir. 1969), cert. denied sub nom. Carroll v. New York, N.H. & H.R.R., 397 U.S. 1039 (1970); Black-Clawson Co. v. International Ass'n of Machinists Lodge 355, 313 F.2d 179 (2d Cir. 1962); Falsetti v. Local 2026, United Mine Workers of America, 400 Pa. 145, 169-171 (1960). See also Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601, 648-652 (1956). An exception to this general rule is made if bad faith or arbitrary or discriminatory conduct by his union has prevented an employee from obtaining arbitration. See Vaca v. Sipes, supra at 185-186, 194-195; Seay v. McDonnell Douglas Corp., 427 F.2d 996, 1001-1002 (9th Cir. 1970); Simberlund v. Long Island R.R., 421 F.2d 1219, 1226, 1228 (2d Cir. 1970); Desrosiers v. American Cyanamid Co., 377 F.2d 864, 870-871 (2d Cir. 1967). The employee does not claim any breach of the Union's duty of fair representation. Therefore, this case does not fall within that exception.

Judgment affirmed.