Acri v. International Ass'n of Machinists & Aerospace Workers

• Decision Date: 06 February 1986
• Docket Number: 84-2509,Nos. 84-2467,s. 84-2467
• Citation: 781 F.2d 1393
• Parties: 121 L.R.R.M. (BNA) 2679, 104 Lab.Cas. P 11,788 George T. ACRI, Gray R. Althen, Jose Angulo, John R. Armstrong, Aronovsky, Morris N., Charles Attard, Norbert H. Baumbart, Duane V. Berg, Glen E. Berg, Waldo M. Bost, Joseph R. Boltes, Donald T. Braund, et al., Plaintiffs-Appellants, v. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS: District Lodge 115 of the International Association of Machinists & Aerospace Workers; and Local Lodge 68 of the International Association of Machinists & Aerospace Workers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1393

781 F.2d 1393

121 L.R.R.M. (BNA) 2679, 104 Lab.Cas. P 11,788

George T. ACRI, Gray R. Althen, Jose Angulo, John R Armstrong, Aronovsky, Morris N., Charles Attard, Norbert H Baumbart, Duane V. Berg, Glen E. Berg, Waldo M. Bost, Joseph R. Boltes, Donald T. Braund, et al., Plaintiffs-Appellants, v. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS District Lodge 115 of the International Association of Machinists & Aerospace Workers; and Local Lodge 68 of the International Association of Machinists & Aerospace Workers Defendants-Appellees.

Nos. 84-2467, 84-2509.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 1985.

Decided Feb. 6, 1986.

Dan Siegel, Siegel, Friedman & Dickstein, Oakland, Cal., for plaintiffs-appellants.

W. David Holsberry, Davis, Cowell & Bowe, San Francisco, Cal., Burton F. Boltuch, Boltuch & Siegel, Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court of the Northern District of California.

Before REINHARDT, BEEZER and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiffs-appellants, members of the International Association of Machinists District Lodge 115 ("plaintiffs"), appeal the district court's grant of summary judgment in favor of defendant-appellees International Association of Machinists, District Lodge 115 of the International Association of Machinists, and Local Lodge 68 of the International Association of Machinists (the "Union"), and the district court's denial of their motion for leave to amend. 595 F.Supp. 326 (1983). We affirm.

BACKGROUND

From 1974 to 1977, the collective bargaining agreement (the "1974-1977 agreement") between the Union and the employer, American Can Company, provided for severance benefits to be paid from a particular fund. Under this provision the employer guaranteed severance pay only to the extent of the fund.

After the expiration of the 1974-1977 agreement, the Union struck. The limit on severance pay was an issue during the strike. At a union meeting on June 17, 1977, union representatives Bob Vegas and Stan Jensen allegedly told the union members present that American Can had agreed to remove the limit on severance pay. A new agreement was ratified at the meeting. There is no record of the breakdown of the ratification vote.

Plaintiffs became aware that the severance pay provision had not been revised in late 1977, when "paste-in" pages to the agreement were distributed and the severance pay provision in the agreement was unchanged. On February 1, 1980 American Can informed plaintiffs that it was going to close the plant as of April 30, 1980. Between February 1, 1980 and February 14, 1980 all plaintiffs were informed that there was not enough money in the fund to pay the full amount of severance pay to which plaintiffs were entitled. The Union proceeded to arbitrate the issue of whether American Can had agreed to remove the limit from the severance pay provisions.

Plaintiffs filed their first complaint on August 6, 1980, while the arbitration was still pending. On December 15, 1980 the parties filed a stipulation dismissing the action and tolling the statute of limitations from August 6, 1980 until one year after the arbitrator's decision or August 6, 1983, whichever came first. On October 14, 1980 the arbitrator determined that American Can had not agreed to modify the severance pay provisions, and awarded severance pay to union members pro rata at approximately fifty percent of the amount which they would have been entitled to absent the limit.

Plaintiffs filed the current cause of action for breach of the duty of fair representation under section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a) ("Sec. 301"), on January 14, 1982. The district court granted the Union's motion for summary judgment after discovery was completed. After oral argument on the summary judgment motion, but before the district court granted the motion, plaintiffs sought leave to amend their complaint to add a cause of action under section 101(a)(1) of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 411(a)(1) ("Sec. 101"), and seek damages for emotional distress. The district court denied leave to amend, finding that amendment would be futile and would result in substantial prejudice to the Union because it would necessitate further discovery.

TIMELINESS OF PLAINTIFFS' CAUSE OF ACTION

The district court found that plaintiffs' cause of action did not accrue until the arbitrator rendered his decision, and therefore concluded that plaintiffs' action was timely even if the six-month statute of limitations applicable to unfair labor practices was applied to plaintiffs' duty of fair representation claim. The determination of which statute of limitations applies to a given cause of action is a question of law which we review de novo. Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036, 1039 (9th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). When, as in this case, the evidentiary facts determining the date of accrual are not in dispute, accrual is also a question of law. Fleury v. Harper & Row Publishers, 698 F.2d 1022, 1029 (9th Cir.) cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983).

Prior to the Supreme Court's decision in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), we applied the statute of limitations applicable to statutory causes of action under "Although state law defines the length of the limitations period, federal law determines when the plaintiff's alleged cause of action accrued." Archer v. Airline Pilots Association International, 609 F.2d 934, 937 (9th Cir.1979)(citing Price v. Southern Pacific Transportation Co., 586 F.2d 750, 754 (9th Cir.1978)), cert. denied, 446 U.S. 953, 100 S.Ct. 2920, 64 L.Ed.2d 810 (1980). Under federal law a cause of action accrues when the plaintiff is aware of the wrong and can successfully bring a cause of action. See Impro Products v. Block, 722 F.2d 845, 850-51 (D.C.Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Baron v. United Artists Pictures Corp., 717 F.2d 105, 108 (3d Cir.1983). Applying this principle, we have held that a cause of action does not accrue at the time plaintiff becomes aware of a wrong if, at that time, the plaintiff's damages are not certain to occur or too speculative to be proven. Archer, 609 F.2d at 937-38 (duty of fair representation cause of action under the Railway Labor Act, 45 U.S.C. Secs. 151-188, did not accrue until amount of contingent fee which plaintiff would be claiming as damages became certain). See also In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 72-73 (9th Cir.), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 L.Ed.2d 136 (1979); Hanson v. Shell Oil Co., 541 F.2d 1352, 1361 (9th Cir.1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977).

                state law in duty of fair representation cases.    See Edwards, 719 F.2d at 1039-40.  In DelCostello the Supreme Court held that duty of fair representation actions are governed by the six-month statute of limitations applicable to unfair labor practice cases.  462 U.S. at 163-172, 103 S.Ct. at 2290-2294.  We have given DelCostello retroactive effect only when the state statute of limitations was shorter than the six-month period provided by DelCostello.  Aragon v. Federated Department Stores, 750 F.2d 1447, 1451 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 229, 88 L.Ed.2d 229 (1985).  In this case, state law provides a three-year statute of limitations.  Cal.Civ.Proc.Code Sec. 338(1).  Because this action was filed before DelCostello was decided, and because state law provides a longer statute of limitations, the state statute determines the timeliness of plaintiffs' cause of action.    See McNaughton v. Dillingham Corp., 722 F.2d 1459, 1460-62 (9th Cir.1984);  Edwards, 719 F.2d at 1040-41
                

Plaintiffs became aware of the alleged misrepresentations when the paste-in pages were distributed in late 1977. Plaintiffs had not suffered any injury at this time. The injury occurred when the plant closed. Accordingly, plaintiffs cause of action did not accrue until sometime between February 1, 1980 and February 14, 1980, when plaintiffs were informed that the plant would be closed and that severance pay would be limited to the amount available in the fund. Plaintiffs' complaint filed on January 14, 1982 complies with the applicable three-year statute of limitations. ¹

THE UNION'S MOTION FOR SUMMARY JUDGMENT

The district court granted the Union's motion for summary judgment on plaintiffs' duty of fair representation and promissory estoppel claims. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Taylor v. Sentry Life Insurance Co., 729 F.2d 652, 654 (9th Cir.1984).

A. Duty of Fair Representation

A union's duty of fair representation extends to conduct during the negotiation or administration of a collective bargaining agreement. Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local No. 14, 453 F.2d 1018, 1023-24 (9th Cir.1972). See Bloom v. Teamsters Local 468, 752 F.2d 1312, 1313-14 (9th Cir.1984). Specifically, a duty of fair representation cause of action can be maintained when union representatives make misrepresentations to the union membership during the ratification process, Anderson v. United Paperworkers International Union, 641 F.2d 574, 576-78 (8th Cir.1981); Deboles v. Trans World Airlines, 552 F.2d 1005, 1018 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977), or in settling an unfair labor practice, see Bloom, 752 F.2d at 1313-14.

Although the duty of fair representation extends to misrepresentations during ratification, plaintiffs must establish a causal relationship between the alleged misrepresentations and their injury. Brown v. UAW, ...