Bottoms v. US Postal Service, Civ. A. No. 88-33-B.

• Decision Date: 12 September 1990
• Docket Number: Civ. A. No. 88-33-B.
• Citation: 748 F. Supp. 439
• Parties: Donald L. BOTTOMS v. UNITED STATES POSTAL SERVICE, et al.
• Court: U.S. District Court — Middle District of Louisiana

748 F. Supp. 439

Donald L. BOTTOMS v. UNITED STATES POSTAL SERVICE, et al.

Civ. A. No. 88-33-B.

United States District Court, M.D. Louisiana.

September 12, 1990.

Donald S. Wingerter, Dan M. Scheuermann, Baton Rouge, La., for plaintiff.

Frank M. Repass, III, Trial Atty., Fine, Fine, Dieth & Repass, New Orleans, La., for defendant Nat. Post Office Mail Handlers, Watchmen, Messengers & Group Leaders, Div. of Laborers Intern. Union, Local 312.

John Gaupp, U.S. Atty., Baton Rouge, C.B. Weiser, Memphis, Tenn., for defendant U.S. Postal Service.

RULING ON MOTION TO DISMISS OR, ALTERNATIVELY FOR SUMMARY JUDGMENT BY UNITED STATES POSTAL SERVICE AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT NATIONAL POST OFFICE MAIL HANDLERS, WATCHMEN, MESSENGERS AND GROUP LEADERS DIVISION OF THE LABORERS' INTERNATIONAL UNION, LOCAL 312

POLOZOLA, District Judge.

I. Background

Donald L. Bottoms was employed as a mailhandler with the United States Postal Service ("USPS") in Baton Rouge, Louisiana on November 24, 1984. On April 20, 1985, Bottoms sustained a lumbar strain in an on-the-job injury. Bottoms received compensation through the Office of Workers Compensation Programs under the Federal Employees' Compensation Act. As a result of the injury, Bottoms was forced to take sick leave. Upon his return, Bottoms was assigned to light duty until he was released for full duty effective February 25, 1986. In February of 1987, Bottoms was injured in an automobile accident which allegedly aggravated his pre-existing injury. On the advice of a physician designated by the USPS, Bottoms sought a transfer to light duty assignments. However, his transfer request was refused by the USPS. Bottoms alleges that the failure of the USPS to reassign him to light duty work is a violation of Article 13 of the collective bargaining agreement ("Agreement") entered into between the USPS and the National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders Division of the Laborers' International Union, Local 312 (the "Union").¹ At this time, Bottoms hired an attorney to assist him in obtaining a reassignment with the USPS, but his attorney was unsuccessful. Bottoms did not file any grievance pursuant to the procedures provided in the Agreement at this time. On August 3, 1987, Bottoms received a notice of removal from employment with the USPS because of his continued unavailability for work. This notice advised Bottoms of his right to file a grievance pursuant to the procedures set forth in the Agreement.

Bottoms then sought to initiate the filing of his grievance with the Union through his attorney, Donald S. Wingerter. Wingerter contacted Herbert Simms, Jr., a Union representative. Simms advised Wingerter that the Union would not cooperate with Wingerter as Bottoms' attorney, but the Union would cooperate with Bottoms in person concerning his grievance. Wingerter relayed this information to Bottoms but Bottoms never contacted the Union concerning his removal.²

Although Bottoms never personally contacted the Union, a Union representative filed a grievance on Bottom's behalf at Step 1 of the grievance procedure on August 19, 1987. The USPS denied the grievance on the same day. An appeal of this Step 1 denial was filed at Step 2 of the grievance procedure which the USPS again denied. The USPS held that the removal was for just cause in light of Bottoms' "failure to meet acceptable attendance requirements"³ and his failure to respond to requests for documentation providing "satisfactory evidence of continued incapacity for work."⁴ Bottom's grievance was not appealed by the Union representative to either the Step 3 or the Step 4 grievance procedure.

Bottoms has now filed this suit against the USPS and the Union claiming negligent and willful misrepresentation under Louisiana Civil Code article 2315⁵ and intentional infliction of emotional distress.⁶ In addition, Bottoms alleges that the USPS intentionally breached both Article 13 of the Agreement concerning the refusal to reassign him to light duty work⁷ and Article 16 of the Agreement for discharging him without cause.⁸ In his suit against the Union, Bottoms also alleges breach of the duty of fair representation owed to Bottoms "by arbitrarily, capriciously, in bad faith and/or invidiously discriminating against the plaintiff in failing to process plaintiff's grievance further through their grievance procedure, including final and binding arbitration if necessary."⁹

The USPS has filed a Motion to Dismiss with Prejudice or, Alternatively, for Summary Judgment. The USPS' motion is based on the following grounds: (1) the Court lacks subject matter jurisdiction over these claims; (2) the plaintiff failed to exhaust administrative remedies; (3) the plaintiff failed to timely file the claim based on the breach of Article 13 of the Agreement; (4) a breach of Article 13 or Article 16 cannot be established; and (5) there was no breach of the Union's duty of fair representation. The Court will consider the motion to dismiss as a motion for summary judgment since the USPS filed evidence with its motion which was considered by the Court. The Union has also filed a motion for summary judgment claiming that it is the exclusive representative in the grievance process and that Bottoms has not presented any evidence to support his allegation that the Union's conduct regarding Bottoms grievance was arbitrary, discriminatory, or in bad faith.

In response to these motions, Bottoms contends that the Court does have subject matter jurisdiction under 29 U.S.C. § 185(a). Bottoms asserts that a genuine issue of material fact exists on the issue of whether the Union's conduct was in bad faith since the Union processed a grievance claim without giving Bottoms or his attorney notice of any hearings or rulings. Bottoms also contends the failure to exhaust administrative remedies is excusable since Bottoms did not have any notice of the administrative action regarding his grievance. In addition, Bottoms claims that documentation of his injury and his continued incapacity to work consisting of reports from his psychiatrist and orthopedist were forwarded to the USPS in June and July of 1987, respectively. Furthermore, Bottoms claims he was not given a letter of warning explaining the misconduct to be corrected as required in Article 16, § 16.3 of the Agreement before he received the notice of removal.

II. USPS's Motion to Dismiss or, in the Alternative, for Summary Judgement

A. Jurisdiction

Bottoms relies on 29 U.S.C. §§ 159(a) and 185(a), the Labor Management Act of 1947, as the basis for subject matter jurisdiction in this case.¹⁰ However, the USPS argues that subject matter jurisdiction arises exclusively under 39 U.S.C. § 1208(b). The Court finds that jurisdiction is present under either 29 U.S.C. § 185(a) or 39 U.S.C. § 1208(b). Numerous courts have held that these two statutes are substantially similar and the case law under them can be applied interchangeably.¹¹ There is nothing to indicate that the provisions of 39 U.S.C. § 1208(b) were intended to be the exclusive basis for jurisdiction. In fact, the exact opposite conclusion is suggested by 39 U.S.C. § 1209, which states:

Employee-management relations shall, to the extent not inconsistent with provisions of this title, be subject to the provisions of subchapter II of chapter 7 of title 29 which includes 29 U.S.C. § 185(a).

Certainly, two statutes which the courts have consistently ruled are so substantially similar that case law interpreting them can be used interchangeably are "not inconsistent with the provisions of this title". Id. The Court finds that the Court does have jurisdiction under 29 U.S.C. § 185(a).¹²

B. Exhaustion of Administrative Remedies

The USPS has asserted that Bottoms did not exhaust his administrative remedies. It is clear that an employee must exhaust the grievance-arbitration procedures provided in a collective bargaining agreement before suit can be brought in federal court.¹³ In this case, Article 15 of the Agreement contains the Grievance-Arbitration Procedure.¹⁴ The procedure provides for a four-step process involving hearings between the Union and the USPS. Arbitration is available as a final administrative remedy. Under the Grievance-Arbitration Procedure, an "employee who feels aggrieved must discuss the grievance with the employee's immediate supervisor within fourteen (14) days of the date on which the employee or the Union first learned or may reasonably have been expected to have learned of its cause." In addition, the Union "may initiate a grievance within 14 days of the date the Union first became aware of (or reasonably should have become aware of) the facts giving rise to the grievance."¹⁵ The failure of the employee or the Union to comply with the prescribed time limits constitutes a waiver of the grievance.¹⁶

Bottoms contends that the USPS's refusal to reassign him to a light duty job after his automobile accident is a breach of Article 13 of the Agreement. However, it is clear that neither Bottoms nor the Union initiated any grievance procedures regarding this claim. Although Bottoms' attorney contacted the USPS regarding this matter, this action was insufficient to initiate a grievance. The Agreement provides that "the Union is the exclusive bargaining representative of all employees in the bargaining unit"¹⁷ and that an employee "may be accompanied and represented by the employee's steward or a Union representative" in this initial meeting if he desires.¹⁸ There is no evidence appears in the record to indicate that Bottoms or the Union ever began a grievance proceeding or exhausted the available administrative remedies. Moreover, the time limits began to run from the date Bottoms or the Union knew or should have known of the grievance, making it impossible for the administrative proceedings to be exhausted.

Bottoms also claims that his employment was terminated without just cause in breach of Article 16...