Abbington v. Dayton Malleable, Inc.

MEMORANDUM AND ORDER

This matter is before the Court on the motions of defendant Dayton Malleable and defendant United Steelworkers of America for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiffs 1 filed a five-count complaint in this lawsuit asserting three claims against Dayton Malleable, Inc. (DMI) and asserting the remaining claims against United Steelworkers of America (union). Plaintiffs have brought this lawsuit pursuant to Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, alleging that defendant DMI violated the collective bargaining agreement between the union and DMI when it closed its Columbus foundry. In addition, plaintiffs allege two pendent state claims against DMI. First, plaintiffs allege that defendant DMI made misrepresentations to the plaintiffs and fraudulently induced them to agree to the collective bargaining agreement at issue in this case. Second, plaintiffs allege that defendants DMI and the union “conspired ... to defraud and deceive the plaintiffs.”

Plaintiffs’ complaint also contains allegations against the union. Plaintiffs initially claim that the union breached its duty of fair representation by, among other things, misrepresenting the facts and circumstances surrounding the execution of the amendments to the collective bargaining agreement; by failing to take action against DMI for closing the Columbus foundry; and by negotiating a plant closing agreement that did not protect the interests of the members of Local 2654. In addition, plaintiffs allege that the union breached its contract with them by failing to protect their interests at all times relevant to this lawsuit. Finally, as has already been noted, plaintiffs allege that defendant union conspired with defendant DMI “to defraud and deceive the plaintiffs.”

*1292 I. Statement of Facts

Both defendant DMI and defendant Steelworkers have filed motions for summary judgment claiming that based on the undisputed facts of this case, they are entitled to judgment as a matter of law. Based on the memoranda and supporting documents of the parties, as well as various statements of counsel during oral argument, a statement of the undisputed facts of this case follows.

DMI is in the business of manufacturing rough commercial castings for major equipment manufacturing companies in the United States. The Columbus Division of DMI (the foundry) produced malleable iron primarily for manufacturers of trucks and farm equipment. DMI and the union were parties to a collective bargaining agreement effective from December 26, 1977 until December 26,1980, which covered the Foundry and DMI’s Ironton Division.

During the three-year period ending June 1979, the Foundry lost approximately $13 million. As a result of these financial losses, DMI informed a union representative, 2 as was required by the 1977 collective bargaining agreement, that DMI was planning on closing the Columbus plant. Thereafter, the company postponed the plant closing until March or April of 1979. At that time, a new president of DMI, Mr. Ladehoff, was selected, and another meeting between representatives of the company and union was held. Once again the financial difficulties of the company were discussed, as well as the declining market for the malleable iron products produced at the Columbus plant. 3 The union’s research department confirmed these losses, and it is undisputed that DMI was suffering severe financial trouble during the period of time in question. 4

A third meeting was held between management and union representatives at which time management made clear that the closing of the Columbus plant was inevitable unless certain changes were made. Among the changes proposed by the company were the following modifications of the collective bargaining agreement:

1. A twelve-month extension, until December 26, 1981, of the existing collective bargaining agreement as it applied to the Columbus plant;

2. A separation of the employees at the Columbus plant from employees at the Ironton plant into two bargaining units under separate agreements;

3.. A suspension of cost-of-living adjustments after June 1979 and a wage freeze for the duration of the contract; and

4. Union and management cooperation in devising new production methods and in setting equitable incentive rates.

*1293 The management of DMI informed the union that if these concessions were made, DMI would make every effort to keep the Columbus plant open including making efforts to modernize the Foundry. 5 The union believed that prior to making any decision on these matters, the employees were entitled to be consulted. 6

Therefore, management and union representatives agreed to hold two meetings in a tent to be erected on a lot next to the plant. At the June 8, 1979 tent meeting, employees were informed by DMI officials of the company’s financial plight. 7 At that time, Mr. Ladehoff, DMI’s president, informed employees that DMI had only two options— closing the plant or attempting to convert and modernize the plant. Ladehoff went on to explain that the later option would have to be approved by the board of directors. Thereafter, Ladehoff outlined the proposed modifications to the collective bargaining agreement which he considered “critical to convince our Board of Directors to allow us to invest 8 to 10 million new dollars into this plant.”

At this tent meeting,- a union representative also spoke to the employees. The proposed modifications to the collective bargaining agreement were reviewed and the union representative reeommended that the concessions be approved. Thereafter, a question and answer session was held, and management gave employees an opportunity to consult with their union representatives privately.

The following day, Saturday, June 9, 1979, a secret ballot vote was conducted. Approximately 90% of the local union’s membership turned out to vote. DMI’s proposed modifications of the collective bargaining agreement were approved by a vote of 426 to 19. Thereafter, company and union officials met in an attempt to reduce these approved modifications to writing. After a series of meetings, the parties’ differences were resolved and the modifications were formalized in a written memorandum of agreement. 8 That memorandum *1294 of agreement expressly embodied the modifications to the collective bargaining agreement which had been approved the day following the tent meeting. 9

Despite the poor performance of the Foundry in July 1979, in August 1979 DMI’s Board of Directors voted an initial investment of $5 million to buy new equipment needed for the conversion to nodular iron production. Various press releases and letters from management confirmed the Board’s approval of this initial expenditure for plant modernization. 10

In the fall of 1979, the financial condition of DMI continued to deteriorate. Nonetheless, it appears from the evidence that attempts to save the Columbus Foundry were still being made. In October of 1979 new equipment necessary for the conversion was purchased and installed. During this time discussion between company and union representatives concerning the effects of modernization were ongoing. 11

By December of 1979 financial losses to DMI were so great that the company was forced to shut down for a period of time and lay off many employees. In January 1980 and February 1980 the company continued to experience severe financial problems. In addition, the company could foresee little relief in the future since marketing forecasts suggested a continued decrease in demand for both malleable and nodular iron.

Finally, the Board of Directors of DMI concluded that the Columbus Foundry should be closed. On March 13, 1980, DMI representatives notified union officials that the Board of Directors had recommended that the Columbus Foundry be closed permanently. 12 On March 20, 1980, the Board of DMI voted to shut down the Columbus plant as of May 31, 1980. The following day, the Foundry’s general manager sent a *1295 letter to each employee notifying him or her of the decision to close the Foundry. 13

Thereafter in April 1980, the union and DMI met to negotiate a plant closing agreement. The plant closing agreement provided for severance pay in amounts equal to vacation entitlements and guaranteed payment of pension benefit levels provided for in the pension agreement. Thereafter, the union met with employees on several occasions to explain the terms of the plant closing agreement. 14

Thereafter in June 1980, plaintiffs commenced this action against DMI and the union. Both DMI and the union have filed motions for summary judgment. The Court will address the motions of each defendant separately.

II. Motion of Defendant DMI for Summary Judgment

A. Breach of the Collective Bargaining Agreement

Plaintiffs’ first claim under Section 301 of the Labor Management Relations Act is that DMI “breached the amended collective bargaining agreement by shutting the Columbus Plant before December 26, 1981.”

It is clear, however, that neither the collective bargaining agreement dated December 26, 1977, nor the Memorandum of Agreement required DMI to keep the Columbus Foundry open. 15 The seminal case in this area is the Sixth Circuit’s decision in Fraser v. Magic Chef-Food Giant Markets, Inc., 324 F.2d 853 (1963). The facts of the Magic Chef case parallel the facts of this case very closely. In Magic Chef the company and union entered into a new collective bargaining agreement when the company experienced financial difficulties. This new agreement superceded the old agreement. Prior to the expiration of the new agreement, the company closed its plant. The employees sued claiming the company had an obligation to continue operations for the duration of the new collective bargaining agreement. The Sixth Circuit rejected plaintiffs’ claims noting that an employer has the right to cease operations even when business is discontinued during the life of a collective bargaining agreement. Magic Chef, 324 F.2d at 855-6. See also Wimberly v. Clark Controller Co., 364 F.2d 225, 228 (6th Cir.1966); Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1122 (6th Cir.1981). 16

Furthermore, the Court in Magic Chef concluded that no provision in the agreement could be interpreted as a limitation on the right of the company to discontinue business and that the contract could not be enlarged by oral testimony. Id. at 856-7.

Similarly, on the facts of this case, DMI had no obligation to continue operations at the Columbus Foundry for the duration of the Memorandum of Agreement. *1296 The Memorandum of Agreement in this case contained no provision obligating the company to remain in business for the duration of that agreement. Finally, contrary to plaintiff’s assertions, oral representations or promises cannot be relied on to alter the clear, unambiguous terms of the memorandum of agreement. 17 Therefore, neither the collective bargaining agreement dated December 26,1977, nor the memorandum of agreement were breached by DMI when it closed the Columbus plant in May 1980. 18

B. Promissory Estoppel

In addition to alleging breach of the alleged memorandum of agreement, plaintiffs allege a cause of action for breach of contract based on the doctrine of promissory estoppel. Relying largely on the Sixth Circuit’s decision in Local 1330, United Steelworkers of America v. United States Steel Corporation, 631 F.2d 1264 (6th. Cir.1980), plaintiffs claim that contractual promises to modernize the Columbus Foundry, and not to close the Foundry may be found based upon the equitable doctrine of promissory estoppel.

The Sixth Circuit in United Steelworkers specifically recognized the possibility of a cause of action based on the equitable doctrine of promissory estoppel. In that case, the Court stated that

The doctrine of promissory estoppel recognizes the possibility of the formation of a contract by action or forbearance on the part of a second party, based upon a promise made by the first party under circumstances where the actions or forebearance of the second party should reasonably have been expected to produce the detrimental results to the second party which they did produce. Restatement (Second) of Contracts § 90 (1932) states:

A promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does not induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.

Restatement (Second) Contracts § 90 (1932).

In this case, plaintiffs’ contractual claim of promissory estoppel is based upon oral statements made during the tent meeting concerning efforts to modernize and keep the Foundry open and the employee responses to these representations.

At the outset, there are a number of difficulties with plaintiffs’ promissory estoppel argument. It is by no means clear that a claim of promissory estoppel based on oral representations is cognizable when the parties have executed a formal contract which addresses the precise matters which are the subject of those oral representations. 19 This matter is raised only in pass- *1297 mg, however, since even if this Court assumes that a claim of promissory estoppel based on oral representations is cognizable, it is clear that no such claim has been established on the undisputed facts of this case.

The doctrine of promissory estoppel requires that plaintiffs prove that defendant DMI made a promise which could reasonably be expected to induce action or forebearance. This Court’s review of the undisputed facts in this case leads it to the inevitable conclusion that no statements by any officers of DMI at either the tent meetings or in various press releases constituted a definite promise to continue operation of or to modernize the Foundry.

The statements of DMI officials at the June 8 “tent meeting” cannot be read as promises. At that meeting the company president first reviewed the financial difficulties experienced by DMI. Mr. Ladehoff then stated:

Now that brings us to the first of several decisions that we must make as a company.

One choice we have is to simply stop losing money here and close it down. The second choice for Dayton Malleable is to invest somewhere between $8-10 million to convert this plant to produce primarily nodular iron.

Mr. Ladehoff then proceeded to address himself to each of the options available to DMI. He stated:

As for the first of those two choices, closing the foundry — it’s an option that I, and I know that you, would like to avoid. I do not want to close this plant, but by the same token I cannot continue with an operation that loses millions of dollars each year....

That brings us to the second choice — to convert this plant to nodular iron production.

Thereafter, Mr. Ladehoff stated that pri- or to converting and modernizing the plant, the company would have to obtain the approval of the board of directors. It was further explained that in order to obtain approval of the conversion plan, the employees would have to convince the Board of Directors that they were willing to make certain concessions. The employees were then presented with the four contract modifications, which eventually became the subject of the memorandum of agreement. Mr. Ladehoff concluded his speech noting that

It’s not going to be easy for us either, but I’m confident that with the 4 points that I’ve outlined we have at least a chance to make this plant successful once again.

Now the choice is yours — if you vote to support us, we’re going to do our best to turn this plant into a winner so everybody here can win.

The Court is simply not convinced that any of these statements constitute promises which would reasonably be expected to induce action or forebearance.

Furthermore, none of the press releases issued by the company during the summer and fall of 1979 constitute a promise to continue operation of the plant. 20 Having reviewed these press releases the Court concludes that the statements contained therein can be divided into two categories. *1298 First, certain press releases simply recite factual information concerning the Found ry — i.e., the board’s approval of the $5 million investment to convert the plant to nodular iron production; the decision to purchase new equipment; and production goals. The remaining statements in press releases may basically be characterized as “congratulatory” insofar as they comment favorably on employee enthusiasm for and dedication to efforts to keep the plant operational. None of the statements in these press releases may be deemed a promise under the standard enunciated in Restatement (Second) of Contracts § 90. 21

In conclusion, therefore, the Court believes that plaintiffs’ allegations of a right to recovery based upon the doctrine of promissory estoppel are without merit.

C. Pendent State Claims

Plaintiffs’ remaining allegations against defendant DMI are state claims. First plaintiffs allege a cause of action based on the tort of misrepresentation and second, plaintiffs allege “a conspiracy .. . to defraud and deceive [them].” Both these claims are based on state law. Because this Court has granted defendant summary judgment on the only claims of plaintiffs for which there was federal jurisdiction, these pendent state claims must be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Aldinger v. Howard, 427 U.S. 1, 14, 96 S.Ct. 2413, 2420, 49 L.Ed.2d 276 (1976); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370, 98 S.Ct. 2396, 2400, 57 L.Ed.2d 274 (1978).

These pendent claims will be dismissed without a finding on the merits for the reason that a federal jurisdictional base no longer exists.

III. Motion of Defendant United Steelworkers for Summary Judgment

Also before the Court is defendant union’s motion for summary judgment. Plaintiffs’ complaint contains a number of allegations against the union. First, plaintiffs claim that the union breached its contract with them by failing to protect their interests at all times relevant to this lawsuit and plaintiffs further claim that the union breached its duty of fair representation.

More specifically, plaintiffs allege that the union “knew ... that Dayton Malleable had no plan to modernize the Columbus plant” and “failed to advise .. . plaintiff that the representations of [DMI] that it intended to modernize the Columbus plant” were false. Plaintiffs further allege that the union breached its duty to them “by recommending approval of the modifications of the collective bargaining agreement” and by “failing to advise the plaintiff [of] the consequences of adopting the modifications.” Finally, plaintiffs contend that the union acted arbitrarily in “failing to take action against Dayton Malleable” following the plant closing and by negotiating a plant closing agreement that did not protect their interests. Plaintiffs’ memoranda contra the union’s motion for summary judgment contain a number of additional allegations against the union, each of which will be addressed below.

The Court begins its analysis by noting that the plaintiffs have presented no facts which would support their allegation that the union breached its contract with them. They have not directed the Court’s attention to any specific provisions of any contract between the union and the plaintiffs, nor have they explained the ways in which the union’s conduct constituted a breach of such a contract, if such a contract exists. Therefore, the Court concludes that this *1299 allegation of breach of contract is coextensive with and a mere restatement of plaintiffs’ breach of the duty of fair representation claim.

Furthermore, at this point it is worth noting that under the seminal case in this area, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), proof that a grievance is meritorious does not alone establish a breach of the duty of fair representation. In this same vein, it seems axiomatic that the union’s liability for breach of the duty is predicated on the finding of liability against the company. Vaca, 386 U.S. at 195, 87 S.Ct. at 919; Ruzicka v. General Motors Corp., 649 F.2d 1207 (6th Cir.1981). Nonetheless, there are exceptions to this rule, as for example, when the union’s breach of duty so taints the entire grievance process that the company’s assertion that the decision of the arbitrator is final cannot be accepted. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Therefore, while this Court’s dismissal of the claims against the employer would ordinarily be dispositive of the plaintiffs’ claims against the union, prudence dictates that we address the claims against the union separately at this point in time.

In an effort to independently determine the union’s potential liability, it is necessary to briefly restate the law concerning a union’s duty of fair representation. 22 It is now well established that a breach of the duty of fair representation “occurs only when a union’s conduct is arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Furthermore, the mere fact that there are alternative courses of action available to the union which may have better advanced the interest of the union’s membership does not alone establish a breach of the duty. Indeed, even proven “errors in judgment ... if ... made honestly and in good faith” would not violate the union’s duty. Farmer v. ARA Services, Inc., 660 F.2d 1096, 1103 (6th Cir.1981). In this regard, a number of courts have noted that “a wide range of reasonableness must be allowed the statutory bargaining agent,” Ford Motor Co. v. Hoffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953), and courts should be hesitant to engage in the “process of second guessing” the union’s decisions. Ruzicka v. General Motors Corp., 649 F.2d 1207, 1212 (6th Cir.1981). While it is true that this “wide range of reasonableness” is not without limits, Hines v. Anchor Motor Freight, 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976), it is also true that allegations of this breach of duty must contain more than mere “conclusory allegations.” Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir.1973). The plaintiffs must provide some documentation of their claim that the union acted arbitrarily, discriminatorily or in bad faith.

With this statement of the law of the duty of fair representation in mind, the Court will now analyze the union’s motion for summary judgment. The plaintiffs by and large do not dispute the evidence offered by the union detailing the action it took during all times relevant to this litigation. 23 Plaintiffs do, however, offer criticism of these actions and suggest alternative courses of action in an effort to establish a breach of the duty of fair representation. The only issue for this Court to de *1300 cide, therefore, is whether under the facts presented the union breached its duty to the plaintiffs. The Court will proceed to detail chronologically the criticism of the union’s actions offered by the plaintiffs and then undertake to analyze the union’s actions pursuant to the legal standard already set forth.

A. Breach of Duty During Period Preceding Tent Meetings

Initially, in the period of time preceding the ratification of the contract modifications, plaintiffs allege that the union breached its duty to them in the following ways: (1) the union met secretly with management between December 1978, when the company first considered closing the plant, and April 1979 when the tent meetings were held; (2) after learning in December 1978 of the possibility of the plant closing, the union failed to advise the employees of that possibility; and (3) the union failed to renegotiate the collective bargaining agreement or to “take action” regarding pension or severance rights in December 1978.

Considering plaintiffs’ allegations either singularly or collectively, they simply do not establish arbitrary, discriminatory or bad faith conduct. The evidence shows that in December 1978 representatives of DMI notified the union district director, Mayfield, that DMI intended to shut down the plant immediately. The union objected to the company’s plan and persuaded DMI to reconsider taking any action at least until after Christmas. Union Memorandum in Support of Motion for Summary Judgment at 5-6 and supporting affidavits. DMI at this point chose not to close the plant, and the union was not contacted again until April 1979 when DMI’s new president, Mr. Ladehoff, asked to meet with union representatives.

Plaintiffs’ criticisms of the union’s conduct during this period are simply insufficient to establish a breach of the duty of' fair representation. The Court frankly is at a loss to understand why the union was required to pursue the problem of the plant closing at any time, from December 1978 until April 1979, or how the failure to pursue the problem constitutes arbitrary, discriminatory or bad faith conduct. It is undisputed that during this time the plant remained open and DMI was under a continuing obligation to notify the union of any change with regard to the plant. At that point in time, the union’s failure to pursue the subject of the plant closing seems entirely reasonable. .In fact, it is patently unreasonable to suggest that the union should have attempted to negotiate a new collective bargaining agreement or secure pension or severance right at that time. Moreover, the union’s decision not to reveal the information concerning the possibility of a plant closing was not arbitrary. At that point no final decision concerning the plant closing had been made and the union’s belief that any communication from them at that point would have needlessly worried the employees seems well-founded. In sum, no interpretation of the facts concerning the union’s conduct between December 1978 and April 1979 supports plaintiffs’ allegations of arbitrary, discriminatory or bad faith conduct.

B. Breach of Duty Immediately Prior To And At The Tent Meetings

In the period of time immediately preceding the ’tent meeting, plaintiffs allege the union acted arbitrarily in failing to give them adequate notice of these meetings and in failing to verify company statements concerning losses. The plaintiffs further allege that the conduct of the union during the tent meetings themselves constitutes a breach of the duty of fair representation. Once again plaintiffs’ allegations in this regard are not meritorious.

The facts of this case clearly establish that in April 1978 the union was contacted by Mr. Ladehoff, DMI’s new president, who presented the union with evidence that the Columbus plant was losing large sums of money. The union’s district director had the union’s research department confirm *1301 these losses. 24 The union then undertook to negotiate a set of contract concessions that would hopefully forestall the closing of the Columbus plant. 25 Prior to agreeing to those concessions sought by the company, however, the union concluded that the seriousness of the situation warranted the presentation of these concessions to the employees for ratification. The union and the company therefore agreed to hold a tent meeting on June 8 to explain the proposed contract modifications to the employees. The plaintiffs were given notice of the tent meetings and ratification vote a week in advance of the meeting and vote. 26 The notice did not contain the proposed contract modifications. The union explains this omission by stating that it was the union’s judgment that the proposals should be kept confidential, to prevent rumors and hysteria from spreading, until the company and union had the opportunity to fully explain these proposals at the tent meeting.

The evidence further establishes that the tent meeting was indeed held on June 8. The plaintiffs allege that the union contributed to the emotionally charged atmosphere of the tent meeting 27 and failed to adequately advise the employees of the consequences of ratifying the proposed contract modifications. The evidence, however, fails to establish that the union acted arbitrarily or in bad faith. The employees were all given adequate notice of the tent, meeting and every effort was made to ensure employee attendance at that meeting. 28 The discussions at the meeting by both management and the union, while somewhat emotional given the seriousness of the subject under discussion, were nonetheless factually accurate. 29 The meeting itself apparently *1302 was calm and well organized and all employees were given the opportunity to have any of their questions answered. Based upon these undisputed facts, the Court can discern no basis for concluding that the union breached its duty to the plaintiffs immediately prior to or at the tent meetings.

C. Breach of Duty Immediately Prior To Or During the Vote

In the period of time following the tent meetings, but prior to the voting, the plaintiffs claim the defendant union breached its duty to them by failing to prepare a written statement of the contract modifications to be voted on; by failing to give plaintiffs adequate time to consider the proposed concessions; and by misrepresenting the fact that the proposal to sever the Local in Columbus from the Local in Ironton had already been voted on by the Ironton workers. Plaintiffs further claim that the ratification vote procedures employed by the union “deprived them of the meaningful exercise of their right to ratify.” Specifically, plaintiffs contend that ballots were of the “yes/no” variety and did not contain any written description of the proposed contract modifications.

Before addressing plaintiffs’ allegations with regard to the union’s conduct immediately before and during the ratification vote, the Court notes that there is some question as to whether the duty of fair representation has any application to voting procedures, as well as the standard to be applied in such cases. A number of courts have held that the duty of fair representation does not require submission of collective bargaining agreements to ratification by membership. See American Postal Workers Local 6885 v. American Postal Workers Union, 665 F.2d 1096, 1105 n. 20 (D.C.Cir.1981); Confederate Independent Unions v. Rockwell-Standard Co., 465 F.2d 1137 (3d Cir.1972); Cleveland Orchestra Committee v. Cleveland Federation of Musicians Local 4, 303 F.2d 229, 233 (6th Cir. 1962), Aikens v. Abel, 373 F.Supp. 425, 432 (W.D.Pa.1974). 30

Assuming the duty of fair representation is not violated when the union provides no vote at all, it remains to be decided under what circumstances, if any, the duty is offended when the union chooses to submit proposals to the membership for ratification. 31

At the very least, the Court believes that when the union undertakes the task of obtaining membership ratification of proposed contract modifications, even though it has no duty to do so, the procedures employed to obtain such ratification must not *1303 be arbitrary, discriminatory, or in bad faith. See Parker v. Teamsters Local 413, 501 F.Supp. 440 (S.D.Ohio 1980) aff’d. mem, 657 F.2d 269 (6th Cir.1981). 32 Having concluded that the duty of fair representation applies to the procedures employed by a union when obtaining membership ratification of contract modification, it is now necessary to examine the plaintiffs’ criticisms of the ratification vote in this case.

The Court cannot conclude that the procedures employed in obtaining ratification of contract modifications were arbitrary, discriminatory or in bad faith. In this case, the union membership was given 24 hours to consider the proposed modifications prior to voting. In addition, while the modifications were not written down prior to the vote, these modifications were explained a number of times at the tent meeting by representatives of both the union and the company. The employees were given ample opportunity to have any questions they might have concerning the proposals answered. There were no improprieties surrounding the easting of ballots and no one objected to the voting procedures at that time. Over 90% of those employees turned out to vote on the contract modifications. While the ballots were of the yes or no variety, the vote was not a close one — 426 employees voted in favor of the modifications while only 19 voted against DMI’s proposal. 33 The Court can simply discern no facts from which it could conclude that the ratification vote procedures employed by the union were arbitrary, discriminatory, or in bad faith. 34

D. Breach of Duty Following the Ratification Vote

In the period following the ratification of the proposed modifications, the plaintiffs allege the union breached its duty of fair representation in the following ways: (1) by failing to immediately reduce the agreed to modifications to writing; (2) by failing *1304 to monitor the company’s progress concerning modernization; (3) by failing to keep the employees informed of DMI’s financial problems; (4) by failing to take action against DMI following the plant closing in April 1979; and finally, (5) by agreeing to a plant closing agreement which failed to adequately protect the membership’s interests.

Once again, the Court notes that absent discriminatory, arbitrary or bad faith conduct on the part of the union, the Court will not engage in the process of “second-guessing” the union’s decisions on these matters. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); Ruzicka v. General Motors Corp., 649 F.2d 1207, 1212 (6th Cir.1981).

Moreover, the Court believes that the facts of this case simply fail to establish any breach of the duty of fair representation. The evidence establishes that following the vote of the membership, union and company met in order to reduce to writing the modifications previously ratified. There is absolutely no evidence that the delay in reducing these proposals to writing was due to some bad faith on the union’s part. Rather it appears from the evidence that the delay resulted from the company and union haggling over the language and substance of the modifications. 35 Thereafter, the company did take steps to modernize the plant. At the same time the union was active in insuring that employees’ wages and benefits were not adversely affected by this modernization. 36 The evidence shows that the union did make an effort to monitor company efforts to modernize the Columbus plant. The union kept abreast of the investments approved by the Board of Directors as well as the new equipment purchases made by DMI. See union’s Reply Memorandum in Support of Motion for Summary Judgment at 30-32. The Court concludes that the union’s efforts to monitor the modernization of the Columbus plant cannot be considered arbitrary or unreasonable.

The facts do not indicate that the union acted to mislead the plaintiffs as to DMI’s financial troubles. The union had no special knowledge concerning the company’s financial plight. Rather, both the union and the employees were made aware of the company’s economic troubles both prior to and following the ratification vote. The - evidence shows that employees were given-the same information as the union concerning the plant’s problems through letters from management. For example, a letter in August of 1979 from management to employees stated that there had been “significant order reductions” and that production schedules for upcoming months [did