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May 4, 1990

JAMES P. WATKINS, JR., Plaintiff,

The opinion of the court was delivered by: PENN


 This is a hybrid action by an employee against his employer for breach of contract and against his union local for breach of the duty of fair representation under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. This matter now comes before the Court on motions by the employer and the union for summary judgment. Both defendants assert that plaintiff's suit is untimely under the six month limitations period of § 10(b) of the Act, 29 U.S.C. § 160(b). Furthermore, each defendant contends that it is entitled to judgment on the merits. For the reasons set forth below, the Court concludes that the motions must be denied.


 Plaintiff James P. Watkins, Jr. was employed by defendant Chesapeake & Potomac Telephone Company ("C & P") from December, 1969 until his discharge on July 15, 1985 for misuse of company time. On that date, Watkins attended a meeting with two supervisory employees of C & P and a steward from Local 2336 of the Communications Workers of America ("the Union"). After being informed by C & P personnel that he would be terminated, Watkins requested the union steward to file a grievance with C & P in order to have the matter submitted to arbitration. The steward obtained a grievance number from C & P the next day.

 The C & P supervisor responsible for hearing the grievance indicates that the Union steward requested no certain date for hearing the grievance and the company was not contacted by the Union until the thirty day limitation in the collective bargaining agreement ("the CBA") between C & P and the Union had expired. Affidavit of James C. Kinser, Jr. at 3, Exhibit to defendant C & P's Motion for Summary Judgment. The Union alleges that its steward, Sidney Tyson, and Watkins supervisor, James C. Kinser, discussed various tentative dates for hearing the grievance, but orally agreed to put off hearing the first step of the grievance for several weeks because "each would be away parts of the next few weeks." Defendant Local 2336's Memorandum in Support of Motion to Dismiss or in the alternative, for Summary Judgment at 8 ("Union Memorandum").

 The parties agree that on August 21, 1985, the Treasurer of the Union arranged for a grievance hearing between plaintiff's supervisor and a second union steward to be held on August 26. The C & P supervisor asserts that he realized shortly after agreeing to hear the grievance on August 26 that more than thirty days had elapsed from the July 15 dismissal, and he states that he called the Union treasurer to notify him that the grievance was untimely and the company would not hear it. Kinser Affidavit, 3. The plaintiff contends that he arrived at the agreed site of the grievance hearing on August 26 only to be told that the meeting had been cancelled, and that the managers were in a meeting. Watkins Deposition at 53, filed October 3, 1986. The Union concurs on this point, and it asserts that it informed plaintiff on September 7, 1985 that the company would not hear the grievance.

 The Union thereafter filed an unfair labor practice complaint with the National Labor Relations Board ("NLRB"), claiming that C & P had wrongfully refused to process the grievance filed on behalf of Watkins. On October 31, 1985, the NLRB informed the Union that it would not issue a complaint against C & P and that the Union could appeal the decision before November 13, 1985. Plaintiff contends that the Union told him that the NLRB action was designed to "make the company hear [the] grievance." Plaintiff's Opposition at 12. The Union admits that it did not inform plaintiff of the result of the initial NLRB decision until around November 19, 1985, after the time allowed for appeal had expired. Union Memorandum at 10. Moreover, it also admits that at that time, the Union's local treasurer told plaintiff that it was still considering an appeal of the decision. Id.


 Hybrid § 301 suits involve two separate but interdependent actions. In order for the employee to prevail he must (1) establish that the employer breached the collective bargaining agreement and (2) demonstrate that the union breached its duty of fair representation. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S. Ct. 2281, 2291, 76 L. Ed. 2d 476 (1983). It is well established that there is a six month limitation on hybrid actions against an employer for breach of contract and a union for breach of its duty of fair representation. Id. at 172, 103 S. Ct. at 2294. However, the Court in DelCostello was not called upon to determine when the six month period begins to run, and consequently, it did not do so.

 Although hybrid suits against both the employer and the union under § 301 of the Act are separate actions, they accrue simultaneously. Proudfoot v. Seafarer's International Union, 779 F.2d 1558, 1559 (11th Cir. 1986). Thus, the timeliness of the action is generally measured from the later of (1) when the employee "discovers, or in the reasonable exercise of diligence should have discovered, the acts constituting the alleged [breach]" by the employer, Howard v. Lockheed-Georgia, 742 F.2d 612, 614 (11th Cir. 1984), or (2) when the employee knows or should have known of the last action taken by the union which constituted the alleged breach of its duty of fair representation. Galindo v. Stoody, 793 F.2d 1502, 1509 (9th Cir. 1986). See also, Proudfoot, 779 F.2d at 1559. Because here, as in Proudfoot, Watkins was discharged before the Union was called upon to process the employee's grievance, the timeliness of the suit turns upon the date when the fair representation claim accrued. The court in Galindo cautioned that the general rule set forth above is not always applied, and that "[a] reasoned analysis of the question when a duty of fair representation claim accrues must focus on the context in which the claim arose." 793 F.2d at 1509.

 The Court in Proudfoot defined "final action" as indicating the "point at which the grievance procedure was exhausted or otherwise broke down to the employee's disadvantage." Id. The matter of when a cause of action accrues is normally a question of fact, Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 887 (11th Cir. 1985), and a dispute as to the timeliness of the suit generally precludes summary judgment, Hill v. Georgia Power Co., 786 F.2d 1071, 1077 (11th Cir. 1986); Proudfoot, 779 F.2d at 1559. In some circumstances, as the court in Samples noted, "knowledge of the union's last action can normally be attributed to the employee when his union notifies him of its decision not to pursue his claim any further, or when he should by use of normal diligence have realized that it had made such a decision." 755 F.2d at 887, n. 7.

 C & P and the Union argue that the cause of action accrued, if at all, no later than September 7, 1985, when the Union informed plaintiff that C & P was unwilling to hear the grievance. It is undisputed that after meeting with Agnew on September 7, plaintiff knew that C & P refused to hear his grievance because the Union did not arrange for a hearing by August 15. Watkins Deposition at 56, filed October 3, 1986. *fn1" According to plaintiff, the Union told him at that time that C & P decided not to waive the time limits. Id. Plaintiff, however, asserts that he believed that the Union was still pursuing his grievance by way of the NLRB proceeding. He understood that the purpose of that proceeding was to force C & P to hear the grievance. Watkins Affidavit at 12, Plaintiff's Opposition Exhibit 1.

 In the circumstances presented here, the Court concludes that the time of accrual should be the time when plaintiff knew or reasonably should have known that his grievance was finally resolved against him. Plaintiff has presented sufficient evidence to raise a genuine issue as to whether that time did not occur until he learned that the charge filed with the NLRB had been dismissed. While a charge with the NLRB presents a separate proceeding, the pendency of which would not by itself toll the time for filing a claim against the union, see Adkins v. International Union of Electrical, Radio & Machine Workers, 769 F.2d 330, 335 (6th Cir. 1985), it is not beyond dispute that plaintiff should have known that the grievance process had ended. If plaintiff reasonably thought that the grievance process had not reached a final ...

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