Angulo v. The Levy Co.
| Decision Date | 19 August 1983 |
| Docket Number | No. 83 C 0374.,83 C 0374. |
| Citation | 568 F. Supp. 1209 |
| Parties | Abel G. ANGULO, Salvador Angulo, Tomas Chavez, Davis H. Diaz, Gerardo Diaz, Ruben A. Figueroa, Andres Flores, Felipe Garcia, Felipe S. Garcia, Eugenio Gonzalez, Miguel Gonzalez, Jose I. Guerrero, Raul Guzman, Mariano Hurtado, Epimenio Medrano, Macario Muniz, Macedoni Corral Ortiz, Luis Ruiz, Hipolito Sanoguet, and Luis A. Munoz, Plaintiffs, v. THE LEVY COMPANY, an Illinois corporation, United Brotherhood of Carpenters and Joiners of America, Chicago District Council of Carpenters, AFL-CIO, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 13, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 558, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1045, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1307, a labor organization; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1539, a labor organization; and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1889, a labor organization, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Bernard M. Kaplan, Ruben, Kaplan & Rosen, Skokie, Ill., for plaintiff.
Ronald Wilder, Lisa A. Weiland, Jean E. McEwen, Schiff, Hardin & Waite, and Stanley P. Sklar, Pretzel & Stouffer, Chtd., Chicago, Ill., for defendant Levy.
Hugh J. McCarthy, Hugh J. McCarthy & Associates, Ltd., Chicago, Ill., for the unions.
This suit is brought under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and § 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b).1
Plaintiffs are 20 current and former employees of the Levy Company (Levy). Defendants are Levy, several labor local unions, and an international labor organization (the unions).
It is alleged that for approximately the past ten years, plaintiffs have been employed as drywall applicators by Levy. During their employment the plaintiffs have each been members of the various defendant unions. The collective bargaining agreements applicable to the plaintiffs' employment have specified minimum hourly rates of compensation. These contracts also contain a clause prohibiting discrimination in employment. Notwithstanding the provisions of the contracts, it is alleged that Levy has pursued a policy of compensating plaintiffs on a "piece rate" basis calculated on the number of drywall sheets installed by the individual plaintiff employees. Such compensation, it is alleged, resulted in plaintiffs each receiving an average of $148 less per week than he should have been receiving according to the minimum hourly rate specified in the contracts. This policy of piece rate compensation was allegedly directed only at Hispanic employees in violation of the non-discrimination clause.
Plaintiffs also allege that they have been required to work, and did work, in excess of 40 hours per week, without being paid minimum overtime wages. To require such overtime without overtime compensation would be in violation of the contract and § 16(b) of the Fair Labor Standards Act.
As to the unions, plaintiffs allege breach of the duty of fair representation. The unions have repeatedly ignored plaintiffs' complaints regarding Levy's discriminatory practices, and have taken no action to correct them. Plaintiffs further assert that the unions are "in connivance" with Levy.
Defendants have moved to dismiss the complaint on various grounds, each of which will be discussed below.
When considering a motion to dismiss, the allegations of the complaint are taken as admitted and the complaint is liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969). Applying this standard to the facts set forth in the complaint now before the Court, it is clear that the plaintiffs have stated a claim sufficient to withstand a motion to dismiss.
I. Claims Under § 301
Both Levy and the unions argue that the plaintiff's claims are barred by the applicable statute of limitations. The Court disagrees.
Courts have been far from unanimous as to what limitations period to apply to a suit under § 301. See, e.g., Bigbie v. Local 142, Int'l. Brotherhood of Teamsters, 530 F.Supp. 402 (N.D.Ill.1981) (); King v. Corn Products, 538 F.Supp. 569 (N.D.Ill.1982) (); Canada v. United Parcel Service, Inc., 446 F.Supp. 1048 (N.D.Ill.1978) (); and Kaftantzis v. D & L Transport Co., 531 F.Supp. 566 (N.D.Ill. 1982) (). This confusion was resolved in DelCostello v. Teamsters, ___ U.S. ___, 103 S.Ct. 2281, 76 L.Ed.2d 476 (U.S.1983), in which the Supreme Court held that the 6-month limitations period of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), governs a suit based on § 301 against both the employer and the union. ___ U.S. at ___, 103 S.Ct. at 2285.
As noted in DelCostello, there is no federal statute of limitations expressly applicable to this suit. ___ U.S. at ___, 103 S.Ct. at 2286. In such situations, courts have generally looked to the most closely analogous statute of limitations under state law. Id. The Court recognized that Id. at ___, 103 S.Ct. at 2289. The Court reasoned that analogies to the suggested state statutes of limitations contained flaws of both legal substance and practical application. First, it noted, short limitations periods for vacating arbitration awards (typically 90 days) fail to provide an employee adequate opportunity to vindicate his rights. Id., at ___, 103 S.Ct. at 2290. Furthermore, the Court added, the analogy of an action to vacate an arbitration award to an unfair labor practice claim is unsatisfactory. Moreover, the Court reasoned because a party to commercial arbitration will ordinarily be represented by counsel or have some experience in contract negotiation, while a labor employee will often be unsophisticated in collective bargaining matters and represented only by the union, the analogy of an action to vacate an arbitration award to an unfair labor claim is less than satisfactory.
The Court also felt that application of a longer state malpractice statute (typically five years) would preclude rapid resolution of labor disputes favored by federal law. Id., at ___, 103 S.Ct. at 2292. Finally, the Court reasoned that since all breaches of a union's duty of fair representation are in fact unfair labor practices, § 10(b), containing the limitations period for filing unfair labor charges, provided the closest analogy. Id. Thus, the Court held that the suit under § 301 was governed by the 6-month limitations period contained in § 10(b).
In view of the above discussion, Levy's citation of United Postal Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) does not require extended treatment. Levy cites Mitchell as support for the application of a 90 day limitations period governing actions to vacate arbitration awards. As the Court noted in DelCostello, the grant of certiorari in Mitchell was only for the purpose of deciding which of two state statutes of limitation to apply to a suit under § 301; the court did not address the contention that it should instead borrow a federal statute of limitations.2 DelCostello, ___ U.S. at ___, n. 2, 103 S.Ct. at 2285, n. 2. The Court in Mitchell thus reserved the question of whether § 10(b) should be applied.3
In light of DelCostello, the Court holds that the instant suit is governed by the 6-month limitation period contained in § 10(b) of the National Labor Relations Act. However, such a holding does not end the Court's inquiry. An important question remains, namely, whether plaintiff's cause of action accrued at the time of the first instance of the alleged discriminatory treatment, approximately ten years ago, thus time barring the instant suit, or whether plaintiffs have alleged a continuing course of discriminatory treatment under which claims arising within the statute of limitations period may properly be brought.
Courts have recognized that employment discrimination may as readily be a continuing course of conduct as a single event. EEOC v. Griffin Wheel Co., 511 F.2d 456 (5th Cir.1975). In cases of continuing conduct, "the statute of limitations ordinarily runs from the occurrence of each discriminatory act." Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 101 (1st Cir.1979). Thus in Marlow v. Fisher Body, 489 F.2d 1057 (6th Cir.1973), where an employee sued both his employer and his union for discrimination based on national origin, the Court stated that, "if the discrimination is a continuing act, or continuing series of acts, for purposes of limitations it is in the nature of a continuing trespass ... Only those acts of discrimination alleged to have taken place prior to the limitations period are barred by limitations." 489 F.2d at 1063.
Similarly, in Jamison v. Olga Coal Company, 335 F.Supp. 454 (S.D.W.Va.), the Court, in holding that a continuing course of conduct had been alleged, noted that the evidence ultimately presented in the case "may very well involve instances of unfair representation as recent as the time of the filing of the complaint..." 335 F.Supp. at 462. The Courts of this circuit are in accord. See, e.g., Cooper v. United States, 442 F.2d 908 (7th Cir.1971); ...
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