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SKIRLICK v. PATCO

April 7, 1987

Anthony Skirlick, et al., Plaintiffs,
v.
PATCO, et al., Defendants


Stanley Sporkin, Judge.


The opinion of the court was delivered by: SPORKIN

Stanley Sporkin, Judge

 I. Introduction

 This is an action on a bond. Plaintiffs are air traffic controllers who did not join their fellow Professional Air Traffic Controllers Organization ("PATCO") members in the 1981 air traffic controllers strike. *fn1" They are suing to recover on a surety bond carried on their union leaders. Their theory is that by conducting an illegal strike, the union leaders engaged in activity covered by the bond *fn2" and that therefore, the bonding company must honor its commitment.

 The bonding company -- the only defendant left in the case -- interposes four defenses as a matter of law: first, that plaintiffs have no standing since only the union's trustee in bankruptcy can bring a claim on the bond; second, that plaintiffs have failed to fulfill the conditions precedent on the bond; third, that the acts complained of do not constitute "fraud or dishonesty" in the handling of funds, which is what the bond covers; and fourth, that plaintiffs knew of similar behavior by the PATCO officers in the past -- that is, an earlier strike engaged in by those leaders -- about which they did not inform the defendant, and thus they are now barred from bringing this claim. Because I find that the plaintiffs' action was not timely filed and that the bond at issue was not intended to cover the actions complained of, I grant defendant's motion for summary judgment and need not reach the other issues raised by the defendants.

 Defendant alleges that the plaintiffs have failed to comply with two provisions in the bond agreement relating to the time for bringing an action on the bond. First, the bond requires that the insured file a detailed proof of loss, duly sworn to, with defendant, within four months after the discovery of loss. Second, the bond provides that no action shall lie against the defendant "at all unless commenced within one year from the date when the Insured discovers the loss." The plaintiffs' loss was discoverable in August of 1981, at the time of the strike, so a proof of loss should have been filed by the end of 1981, and an action should have been commenced by August of 1982. Neither of these deadlines was met. *fn3"

 Plaintiffs ask the Court to excuse their delay for several reasons. First, they argue:

 
Until April of 1982 [the plaintiffs] did not know to whom to give notice. That information was in the control of PATCO's "leaders," the wrongdoers. Not knowing to whom to provide the information rendered is not only impracticable but impossible to do so. Secondly, the overtime demands on these controllers during the period before April of 1982 left little time for them to pursue their claim, or at least impeded that ability and made it impracticable to do so.

 Opposition to Defendant Fidelity & Deposit Company of Maryland's Motion for Summary Judgment ("Pl. Br.") at 32. (Plaintiffs go so far as to suggest that the defendant acted in concert with the striking union members to deprive the non-striking members of any information concerning the bond. Pl. Br. at 30-31, 44.) But, even if I accept this April, 1982 date as the time at which to start the clock, the plaintiffs still failed to give the defendant a proper proof of claim within four months and still failed to bring this action within one year.

 Plaintiffs then fall back on a second argument to explain their delay from April of 1982 -- they claim they were relying on the union's trustee in bankruptcy, and could not bring this action until the trustee allowed them to. See e.g., Pl. Br. at 28-30 citing Hough v. PATCO, Case No. 81-00656, Adv. No. 82-0093, (Bankr. D.D.C., Dec. 20, 1983) ("the trustee is the only party in interest to pursue any such causes of action . . .") This argument is also misplaced though, because, although the bankruptcy case stayed actions against the union, it in no way impeded the plaintiffs from pursuing this claim against the bonding company. Moreover, to the extent plaintiffs believed only the trustee could bring this case against the bonding company, plaintiffs could have brought an action against the trustee forcing him to give them the claim before the limitations period ran. What they should not have done was sit on the claim and then attempt to argue that their delay should be excused.

 Failing in these two arguments, plaintiffs finally contend that the notice provisions of the bond conflict with a union member's right to sue their unions, as guaranteed by the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), Section 101 (a)(4), as amended, 29 U.S.C. § 411 (a)(4), *fn4" and therefore that such notice requirements are unenforceable. Pl. Br. at 35-44. I do not believe that enforcement of these contractual provisions conflicts in any manner with the union member's right to sue as guaranteed by § 101 (a)(4). First, I note that this type of bond provision has been approved by the Department of Labor. Second, unlike the plaintiffs, I fail to see any significant relationship between the bonding requirements of § 502 and the Bill of Rights guarantees of § 101 (a)(4) and thus cannot see how enforcing the notice provisions of this union contract will undercut the union members statutorily guaranteed rights.

 Plaintiffs have failed to come forward with any compelling reason why they should be excused from the contractually-agreed to time limitations on bringing an action against the bond company. Accordingly, the case must be dismissed as untimely. But, even if the action were not dismissed as untimely, it would have to be dismissed ...


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