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 breakdown, and that his union might be able to force C & P to hear that grievance, his cause of action would not have accrued as of September 7, 1985.
The Union additionally seeks to have the action dismissed on the ground that the local is not a signatory to the CBA, and consequently, there is neither jurisdiction under § 10 of the Labor Management Relations Act, nor a duty on it to provide fair representation to the plaintiff. In this respect, the local clearly misconstrues the applicability of the provisions of the Act. The Supreme Court, in Complete Auto Transit v. Reis, concluded that the Act "provides for collective bargaining agreements to be enforced 'against each of the parties thereto'". 451 U.S. 401, 408, 101 S. Ct. 1836, 1841, 68 L. Ed. 2d 248 (1981). In its exposition of the legislative history of the Act, the Court relied upon Representative Case's explanation that the term "parties" was limited to the employer and "the recognized bargaining agent, rather than an individual." Id. at n. 7, quoting 92 Cong. Rec. 765 (1946).
It is undisputed that Article 12 of the General Agreement between C & P and the Communications Workers of America in force during the time period relevant to this action specifically recognizes chartered union locals as the agent for the Communication Workers of America in initially processing grievances. As a chartered and affiliated local of the national union, the local must be considered a "party" to the CBA within the meaning of § 10 of the Act.
The Union also asserts that plaintiff has alleged nothing more than negligence against the Union, and that mere negligence is insufficient to support a claim for breach of the duty of fair representation. In his complaint, plaintiff alleges that the Union failed to properly prepare, file, and pursue his grievance, and also that this failure was a deliberate attempt to deprive plaintiff of his right to file a grievance. Complaint pars. 12 and 14. After a full opportunity for discovery, plaintiff has submitted no evidence to support his claim that the Union's actions were deliberate or in bad faith. Thus, the question here is whether any facts alleged and supported by plaintiff form the basis for a viable claim based upon arbitrary action by the Union.
Generally, to establish a breach of the duty of fair representation, an employee must show that the union's conduct was 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). Many courts have held that mere negligent conduct does not constitute a breach of the duty. See, e.g., Galindo, 793 F.2d at 1514; Hoffman v. Lonza, 658 F.2d 519, 523 (7th Cir. 1981); Ruzicka v. General Motors Corp., 649 F.2d 1207, 1211-12 (6th Cir. 1981).
The United States Court of Appeals for the Ninth Circuit has attempted to formulate some standards for determining when a union's conduct rises to the level of arbitrariness. See Galindo, 793 F.2d at 1514. It has stated that "an act of omission by a union may be so egregious and unfair as to be arbitrary. . . ." Id., quoting Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985); see also NLRB v. Teamsters Local 282, 740 F.2d 141, 147 (2d Cir. 1984). The crucial elements for a claim of arbitrariness are that the union's error involved a ministerial rather than judgmental act, that there was no rational or proper basis for the union's conduct, and that the union's conduct prejudiced a strong interest of the employee. Id.
Here, plaintiff asserts that the Union acted arbitrarily in failing to set up a first-step grievance hearing within thirty days of filing the grievance. He argues that if the Union had obtained an extension of time to present the grievance, it wrongfully failed to act within the time allowed. If, on the other hand, the Union had not obtained an extension, plaintiff contends that it is guilty of bad faith in representing that it had. There is no dispute that plaintiff's interests in having his grievance heard were prejudiced because C & P determined that the Union failed to present plaintiff's grievance on time.
Plaintiff has met his initial burden under the standards of Galindo by showing a prejudicial failure by the Union to perform a procedural act.
However, the Union contends that its reliance upon C & P's past practice of waiving time limits provides a proper basis for its conduct and entitles it to judgment as a matter of law.
If a union fails to timely pursue a grievance because of its reliance on a prevailing practice of freely granted extensions, it will not be liable for unfair representation. Ruzicka, 649 F.2d at 1211. There is no dispute that "C & P and Local 2336 have orally agreed to waive time limits in numerous cases and have reduced the extension agreement to writing only, if at all, at the end of the extension period." Union's Statement of Facts Not in Dispute, par. 6. However, the Union has failed to submit evidence which shows that Tyson either had such an agreement here, or that he believed he had reached an agreement based upon past practice. Tyson has not been deposed in this case, and the Union has not submitted an affidavit from him. Furthermore, although the Union's answers to plaintiff's interrogatories state that Tyson was one of the people answering them, he did not sign the answers, and they cannot be treated as his sworn statements. Therefore, the Union has failed to meet the requirements of Fed. R. Civ. P. 56, and its motion for summary judgment on liability must be denied.
C & P has also moved for summary judgment on the issue of whether it breached the CBA by discharging plaintiff without just cause. After reviewing the affidavits submitted by James C. Kinser and plaintiff, and drawing all inferences in plaintiff's favor, the Court concludes that there are genuine issues of material fact which preclude the entry of summary judgment on this question. Specifically, if plaintiff's allegations are true, there is a genuine issue as to whether he was led to believe that he could complete his assigned work on July 6, 1985. Although plaintiff's prior unsatisfactory performance was taken into account, it appears that C & P viewed the events of July 5 as the "final straw" when it decided to fire him.
In view of the above, it is hereby
ORDERED that the Chesapeake and Potomac Telephone Company's motion for summary judgment is denied; and it is further
ORDERED that Local 2336's motion to dismiss or for summary judgment is denied.
Date: MAY 4, 1990
ORDER - May 7, 1990, Filed
It is hereby
ORDERED that this case is set for a status hearing on May 29, 1990 at 9:30 a.m., it is further
ORDERED that the parties are required to file a written status report on or before May 18, 1990. The report shall state:
1. Whether the party requires additional discovery and if so, the time requested to complete discovery.
2. Whether the party intends to file any motions and if so, the nature of the motion(s) and the date(s) on which the motion(s) will be filed.
3. The date on which the party will be prepared to file statements pursuant to Fed. A. Civ. P. 26(b)(4)(A)(i) with respect to each expert witness the party intends to call.
4. Any unusual issues or other matters the party seeks to bring to the attention of the Court.
5. Amount or action that you will accept or offer to settle this case.
Date MAY 4, 1990