Hersh v. Allen Products Co., Inc.

Decision Date30 April 1986
Docket NumberNo. 85-1027,85-1027
Parties122 L.R.R.M. (BNA) 2730, 104 Lab.Cas. P 11,959 HERSH, Denise M., Appellant, v. ALLEN PRODUCTS COMPANY, INC. d/b/a Alpo Pet Products, and Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union # 773, Appellee.
CourtU.S. Court of Appeals — Third Circuit

Edward R. Eidelman, (argued), Stamberg & Caplan, Allentown, Pa., for appellant.

Stephen C. Richman (argued), William T. Josem, Markowitz & Richman, Philadelphia, Pa., for appellee Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union # 773.

Larry J. Rappoport (argued), Hayes & Feege, P.C., Allentown, Pa., for appellee Allen Products Co., Inc. d/b/a Alpo Pet Products

Before HUNTER, GARTH, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Denise M. Hersh brought this action against her employer, Allen Products Company, Inc., d/b/a Alpo Pet Products ("Alpo") and Local 773 of the Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union") under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. In her complaint, Hersh alleged that her October 5, 1983 discharge by Alpo violated the terms of its collective bargaining agreement with the Union and that the Union breached its duty of fair representation owed Hersh by failing to process her grievance to arbitration pursuant to the grievance procedures established by the collective bargaining agreement. Alpo and the Union filed motions for summary judgment claiming that Hersh's cause of action was barred by the six-month statute of limitations prescribed by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). 1 The two defendants also filed a counterclaim for attorney's fees against Hersh, alleging that Hersh's suit was frivolous and brought in bad faith.

The district court ruled that Hersh's claim was barred by the statute of limitations, and accordingly granted summary judgment in favor of Alpo and the Union on her section 301 and duty of fair representation claims. The district court ruled against Alpo and the Union on their attorney's fees counterclaim.

Hersh appealed from the district court's summary judgment order. No cross-appeal was filed by the defendants respecting their counterclaim. We reverse the district court's order granting summary judgment.

I.

Denise Hersh was employed as a packing line operator by Alpo from June 28, 1977 to October 5, 1983. At all times pertinent to this litigation, a collective bargaining agreement containing detailed attendance and disciplinary provisions was in effect between Alpo and the Union, of which Hersh was a member. The terms of the agreement provided that employees were assessed a specified number of points for lateness or unauthorized absences. When an employee accumulated thirty five (35) or more points during a given twelve (12) month period, the employee was subject to disciplinary measures, including discharge. Employees were permitted to challenge the assessment of points through the grievance provisions of the agreement.

Hersh had accumulated 32 points by October 1983. On October 5, 1983, she was assessed seven (7) additional points for an October 3, 1983 absence thereby bringing her point total to 39, four points over the limit permitted by the agreement. Accordingly, she was notified on October 5 that she would be discharged. That same day, Hersh filed a grievance pursuant to the collective bargaining agreement alleging that she had been improperly discharged. Earlier in 1983, Hersh had filed similar grievances challenging the assessment of points against her by Alpo. As of October, 1983, these previous grievances had neither been processed nor resolved.

On October 19, 1983, all of Hersh's grievances were considered at a third step grievance meeting between Hersh and representatives of Alpo and the Union. During that meeting, the Union representative. Robert Seng, privately met with Hersh in the hallway. In the course of their discussion, Seng allegedly told Hersh that "it did not look like the Alpo representatives would change their mind [about her grievances and discharge]." (Hersh, Aff. p 4; see Hersh Dep. 23-24).

At this point, the record becomes unclear as to what exactly transpired next. According to Alpo and the Union, Hersh received notice at the October 19 hallway meeting that Alpo had denied her grievances and that the Union had refused to process them through to arbitration. Hersh, on the other hand, contended that she received no notice on October 19 that her grievances had been denied and that she left that meeting believing her grievances were still pending. She also claimed that she affirmatively told the Union representative that she desired arbitration if she lost her grievances. Until she received a copy of the collective bargaining agreement from the Union in May 1984, Hersh claimed, she did not know that the time for arbitration had expired.

What is clear from the record, however, is that the Union filed no affidavits supporting the summary judgment motions and that neither the Union nor Alpo at any time provided Hersh with written notice of the denial of her grievances or of the Union's refusal to proceed to arbitration.

On June 12, 1984, Hersh filed the present action against Alpo and the Union. Both Alpo and the Union moved for summary judgment, arguing that Hersh's cause of action accrued on October 19, 1983 and was accordingly barred by the sixth-month limitations period established by DelCostello. As noted, the district court agreed with the statute of limitations argument, and granted summary judgment on that issue in favor of Alpo and the Union. It was from that order that Hersh appealed.

II.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and must resolve all reasonable doubts as to the existence of a genuine issue of material fact against the movant. In reviewing a district court's grant of summary judgment, we apply the same standards as the district court. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); see Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir.1985).

The sole question before the district court was whether there existed an issue of material fact as to whether Hersh's complaint was barred by the applicable six-month statute of limitations established in Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) for section 301 and duty of fair representation actions. It is undisputed by the parties that the six-month period begins to run "when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation." Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983), citing Hungerford v. United States, 307 F.2d 99, 102 (9th Cir.1962). In applying the so-called "Hungerford Rule" to section 301 actions, courts have held that the statutory period begins to run when "the plaintiff receives notice that the union will proceed no further with the grievance." Bruch v. United Steelworkers of America, 583 F.Supp. 668, 670 (E.D.Pa.1984).

Thus, the issue before the district court, and the issue which we confront on appeal, is whether Hersh "discovered, or in the exercise of reasonable diligence should have discovered prior to December 12, 1983 (six months prior to the filing of this action) that her grievance had been denied and that the Union did not intend to pursue the matter to arbitration." District Court opinion at App. 204-05.

III.

The district court in granting summary judgment for Alpo and the Union necessarily had to conclude that the record disclosed no material dispute of fact as to when Hersh discovered that her grievances had been finally denied and that no further process for relief was available to her. Thus, the district court's ruling in favor of Alpo and the Union must be construed as a finding that Hersh's verified complaint, affidavit, and deposition conclusively demonstrated that Hersh received actual notice both of the Alpo denial of her grievances and the Union's intention not to proceed to arbitration on October 19, 1983. We cannot agree that the record reveals this.

Both Alpo and the Union contend that Hersh's complaint and testimony on deposition are sufficient without more to establish the uncontradicted fact that October 19, 1983 is the date from which the six-month statute of limitations must be measured. Both defendants rely on paragraph 21 of Hersh's complaint which alleges that all three of her grievances "were considered and denied" at the October 19 meeting. Paragraph 22 then goes on to state:

Mrs. Hersh requested that the Union process these grievances, including her discharge through arbitration. The Union by and through its agents summarily refused to take any further action.

Although this paragraph does not indicate exactly when the Union "summarily refused" to process her grievance to arbitration, Alpo and the Union contend, and the district court determined, that the "only conclusion possible is that she received notice as of October 19, 1983." District Court opinion at App. 207. However, an examination of the affidavits and Hersh's testimony on deposition does not reveal a date certain on which she received the requisite notice....

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