Bigbie v. Local 142, Intern. Broth. of Teamsters, 81 C 4507.

• Decision Date: 12 January 1982
• Docket Number: No. 81 C 4507.,81 C 4507.
• Citation: 530 F. Supp. 402
• Parties: Eugene BIGBIE, et al., Plaintiffs, v. LOCAL 142, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

530 F. Supp. 402

Eugene BIGBIE, et al., Plaintiffs, v. LOCAL 142, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants.

No. 81 C 4507.

United States District Court, N. D. Illinois, E. D.

December 8, 1981.

Supplemental Memorandum Opinion and Order — January 12, 1982.

Mark B. Bigelow, Chicago, Ill., for plaintiffs.

Edwin Benn, Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Chicago, Ill., for defendant Local 142.

Lawrence J. Casazza, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., Harold Abrahamson, Michael C. Adley, Abrahamson, Reed & Tanasijevich, Hammond, Ind., for defendant Artim Transportation System, Inc.

SHADUR, District Judge.

MEMORANDUM OPINION AND ORDER

Eugene Bigbie and several fellow employees have sued their union, Local 142, International Brotherhood of Teamsters ("Union"), and their employer, Artim Transportation System, Inc. ("Artim"). Complaint Count I, asserted under Labor Management Relations Act § 301 ("Section 301," 29 U.S.C. § 185), claims (1) a breach by Artim of its collective bargaining agreement with Union and (2) a breach by Union of its duty of fair representation. Complaint Count II, grounded upon Labor-Management Reporting and Disclosure Act § 101(a) ("Section 101(a)," 29 U.S.C. § 411(a)), is based solely on a claimed omission by Union. It alleges a violation of plaintiffs' rights to attend Union's membership meetings and to participate in deliberations and vote on the business of such meetings.

Both Union and Artim have moved to dismiss or for summary judgment. Each asserts the following arguments among others:

(1) Count I is barred by the applicable statute of limitations.

(2) Count II is precluded by plaintiffs' failure to exhaust their internal union remedies before suing.

Because this Court finds the first of those contentions sound but the parties have provided insufficient information to deal with the second, defendants' motion to dismiss Complaint Count I is granted, but decision is deferred on Union's summary judgment motion as to Count II.

Facts¹

Count I

About May 9, 1979 Artim told plaintiffs they would be laid off indefinitely effective June 1. Plaintiffs and other Artim drivers could, however, retain their employment if they agreed to be paid on a percentage rather than an hourly basis. That action by Artim assertedly violated the Artim-Union collective bargaining agreement.

Plaintiffs then requested Union to file a grievance on their behalf, but Union declined to do so. Union's failure to process plaintiffs' grievance was allegedly a violation of Union's duty to provide fair representation to its members.

Plaintiffs request an injunction compelling Artim to reinstate plaintiffs to their hourly positions as drivers. They also seek compensatory and punitive damages against both Artim and Union.

Count II

In November 1979 Union held a meeting to discuss and vote on acceptance or rejection of Artim's action to change hourly drivers to percentage drivers. Such a change would involve an amendment to the collective bargaining agreement. Count II asserts that Union and its officials purposely did not notify plaintiffs of the meeting, though all plaintiffs were members of Union in good standing. Union's affidavit treats only with plaintiffs' not having pursued intra-union remedies. Both parties are thus deficient in their submissions on Union's summary judgment motion.

Count I

Both Union and Artim have moved to dismiss Count I because this action was not filed until August 7, 1981, some 21 months after the last relevant event took place. They contend that limitations bar plaintiffs' claim under the doctrine of United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) ("Mitchell").

State law provides the applicable statute of limitations in Section 301 actions like Count I. International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966). Mitchell, 101 S.Ct. 1564, held that a suit for breach of the duty of fair representation is "analogous to an action to vacate an arbitration award."² Combining those principles, the Mitchell Court applied the New York Arbitration Act's 90-day statute of limitations to bar the employee's fair representation suit.

All the relevant events leading to this action took place in Indiana, whose statute of limitations would therefore apply under Illinois choice-of-law rules. Indiana's arbitration act, directly analogous to the statute held applicable in Mitchell, provides a 90-day period in which actions must be filed to vacate arbitration awards. Indiana Code 34-4-2-13.³ If Mitchell governs here, plaintiffs did not timely file their Section 301 claim and Count I is time-barred. Accord, Davidson v. Roadway Express, Inc., 650 F.2d 902 (7th Cir. 1981).

Plaintiffs seek to distinguish Mitchell. They say at page 4 of their responsive brief:

Mitchell involved a case wherein there had been a final and binding adjudicated decision within the confines of the grievance procedure. Logically, the Court applied the limitation period in the state statute to vacate an arbitration award. However, where there is no final and binding adjudicated decision to contest, there no longer exists any rationale for applying a statute dealing with the vacating of an arbitration decision.

That suggested distinction is unpersuasive given the rationale of Mitchell and our Court of Appeals' later decision in Davidson. There the Court followed and applied Mitchell without focusing as a critical matter on the stage of the grievance procedure at which plaintiffs' claim was defeated. As the Davidson Court said, 650 F.2d at 903:

In Mitchell the Supreme Court held that a suit against an employer under Section 301 can be most closely analogized to an action to vacate an arbitration award because the employee must first establish a flaw in the binding grievance procedure before being entitled to reach the merits of his contract claim. Mitchell, 101 S.Ct. at 1563-64.

Under that analysis it is quite irrelevant at what point in the contractual grievance procedure Union's breach of its duty of fair representation has occurred. Whether Union has failed to file any grievance at all (as alleged here) or has failed to represent the employee fairly before the grievance committee (as in Davidson)⁴ or has failed to appeal from an adverse arbitration decision (as in Mitchell) has no significance in relation to the substance of a Section 301 claim: whether Union has breached its duty of fair representation. From the employee's viewpoint a union's refusal to launch the grievance procedure is just as "final and binding" as a refusal to carry forward a grievance at any point after the procedure has been invoked. What is significant in each situation is that the Mitchell Court chose to analogize the action to one vacating an arbitration award, rather than applying the statute of limitations for an action enforcing a written or oral contract. It would be absurd to have a 90-day limitation period in one such situation and a five-year period in another representing the other side of the same coin.

Count I is therefore dismissed as to Union as untimely filed. Because plaintiffs' claim against Artim is viewed as derivative as a matter of law (see n.2), Count I is dismissed as to Artim as well.

Count II

Because Union does not controvert Count II's allegations in that respect,⁵ this opinion will assume that Union's failure to notify plaintiffs of the November 1979 membership meeting was intentional and a violation of plaintiffs' rights under Section 101(a), which guarantees "every member of a labor organization ... equal rights ... to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings...." Under the circumstances the Court cannot determine whether plaintiffs' failure to exhaust internal union remedies defeats their claim.

Under Section 101(a)(4) Union cannot limit the right of union members to sue, except:

... that any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof.

By affidavit of its Secretary-Treasurer Donald Sawochka ("Sawochka") Union has established — and plaintiffs have not contested — that defendants have not pursued the union appeals procedures as to the claimed violation of their Section 101(a) rights. Nor is there any dispute as to the reasonableness of the hearing procedures or satisfaction of the four-month limitation.

Plaintiffs point out however that Section 101(a)(4)'s exhaustion requirement is discretionary and may, under appropriate circumstances, be waived. Ryan v. IBEW, 361 F.2d 942, 945-46 (7th Cir. 1966). Under the cases such discretion may properly be exercised in favor of waiver in either of two general circumstances:

(1) when the action of a union is, in the plaintiffs' words, "indisputably illegal or void"; see, Wiglesworth v. Teamsters Local Union No. 592, 552 F.2d 1027, 1030 (4th Cir. 1976); Libutti v. DiBrizzi, 337 F.2d 216, 219 (2d Cir. 1964); and

(2) when the appeal would be inadequate, illusory or futile; see, Semancik v. United Mine Workers of America District No. 5, 466 F.2d 144, 150-51 (3d Cir. 1972); Verville v. Int'l Ass'n of Machinists & Aerospace Workers, 520 F.2d 615, 620 (6th Cir. 1975).

Examination of the cases applying the "voidness" doctrine discloses the inadequacy of both parties' submissions here. Those cases excuse exhaustion of intra-union remedies "when conceded or easily determined facts show a serious violation of the plaintiff's rights." Wiglesworth, quoting Libutti. What do we have here? Union does not controvert by affidavit plaintiffs' allegations of deliberate exclusion from union democracy; does ...