Carter v. Smith Food King

• Decision Date: 11 July 1985
• Docket Number: No. 84-5894,84-5894
• Citation: 765 F.2d 916
• Parties: 120 L.R.R.M. (BNA) 2479, 43 Fair Empl.Prac.Cas. 893, 37 Empl. Prac. Dec. P 35,407, 103 Lab.Cas. P 11,561, 1 Indiv.Empl.Rts.Cas. 1848 Donald CARTER, Plaintiff-Appellant, v. SMITH FOOD KING, dba Smith Food King Retail Clerks Union 1428, Larry D. Sooter, President Local Union 1428, Gary Doone, Bob Smith aka Robert Smith, David Thornton and Does 1 through 130 Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 916

765 F.2d 916

120 L.R.R.M. (BNA) 2479, 43 Fair Empl.Prac.Cas. 893,

37 Empl. Prac. Dec. P 35,407,

103 Lab.Cas. P 11,561,

1 Indiv.Empl.Rts.Cas. 1848

Donald CARTER, Plaintiff-Appellant, v. SMITH FOOD KING, dba Smith Food King Retail Clerks Union 1428, Larry D. Sooter, President Local Union 1428, Gary Doone, Bob Smith aka Robert Smith, David Thornton and Does 1 through 130 Inc., Defendants-Appellees.

No. 84-5894.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 4, 1985.

Decided July 11, 1985.

Ida L. Campbell-Thomas, Pomona, Cal., for plaintiff-appellant.

Ralph J. Scalzo, McLaughlin & Irvin, Robert M. Simpson, Rose, Klein & Marials, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Donald Carter filed suit in state court alleging that his former employer, Smith-Food King; his former union, Retail Clerks Union Local 1428 ("union"); and various individuals associated with those organizations had violated many of his rights as an employee. ¹ The defendants removed the action to federal court. The district court construed Carter's complaint as alleging numerous causes of action: a federal claim against Smith-Food King for breach of its collective bargaining agreement; a federal claim against the union for breach of its duty of fair representation; state tort claims against both Smith-Food King and the union for breach of the covenant of good faith and fair dealing, wrongful interference with a business relationship, intentional infliction of emotional distress, and constructive discharge; and a state law claim against both Smith-Food King and the union for age and sex discrimination in violation of the California Fair Employment and Housing Act.

The district court assumed jurisdiction over the entire action and granted summary judgment in favor of the defendants on the claims it construed as arising under federal law as well as the claims that arose under California law. The court dismissed the claim for breach of the collective bargaining agreement as time-barred. It dismissed the claim for breach of the duty of fair representation finding that no genuine issue of material fact existed and that the union was entitled to judgment as a matter of law. It dismissed Carter's pendent tort claims, concluding that the allegations were mere recharacterizations of the federal claims and were thus preempted by federal labor law. Finally, the court dismissed Carter's pendent statutory discrimination claim for his failure to exhaust available administrative remedies. Although we affirm the district court's judgments that Carter's pendent tort claims were preempted by federal law and that Carter had failed to exhaust available administrative remedies with respect to his statutory discrimination claim against the union, we reverse its decision to grant summary judgment in favor of Smith-Food King and the union on each of Carter's other claims.

I. Breach of the Collective Bargaining Agreement

The district court ruled that Carter's claim against his employer for breach of the collective bargaining agreement was barred by the 100-day statute of limitations prescribed by California Code of Civil Procedure section 1288. The court concluded that the applicable statute of limitations was determined by state law, noting that we had not yet decided whether to give retroactive effect to that portion of the Supreme Court's decision in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which held that the six-month statute of limitations in section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b), applies to section 301 claims against an employer.

Subsequent to the district court's decision and the parties' briefing of this case on appeal, we have made clear that the six-month statute of limitations prescribed by Del Costello is to be applied retroactively when the effect of doing so would be to lengthen the period in which petitioners could have timely filed their claims. Aragon v. Federated Department Stores, Inc., 750 F.2d 1447, 1451 (9th Cir.1985). Such is the case here; the six-month federal statute of limitations exceeds the 100-day period that would otherwise be applicable under California law. We therefore conclude, and Smith-Food King now agrees, that the timeliness of Carter's complaint must be assessed in light of the NLRA's six-month statute of limitations. As Smith-Food King further agrees, Carter's complaint was filed within six months of the date that his cause of action accrued. ²

Accordingly, we reverse the district court's judgment that Carter's claim against his former employer for breach of its collective bargaining agreement was time-barred. ³ Although we express no view as to the merit of Carter's section 301 claim, we are unable to affirm the district court's dismissal of the claim because, as explained in section II, infra, a triable question of fact exists as to whether the union breached its duty of fair representation in failing to pursue Carter's claim that Smith-Food King had unjustly manipulated his schedule. ⁴

II. Breach of the Duty of Fair Representation

The district court granted the union's motion for summary judgment on Carter's claim for breach of the duty of fair representation. In order to maintain an action for breach of the duty of fair representation, a claimant must establish that the union has acted toward him in an arbitrary, discriminatory, or bad faith manner. See, e.g., Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Here, Carter alleges that the union discriminated against him by arbitrarily refusing to pursue his various grievances against Smith-Food King and by treating his claims in a hostile manner. In his affidavit he contends that on more than one occasion the union business agent demonstrated hostility toward his claims and toward him personally and singled him out for unfair and demeaning treatment. The district court concluded that the evidence before it established "beyond any doubt" that the union had acted non-arbitrarily and in good faith in deciding to drop Carter's grievances short of arbitration. We disagree.

The uncontroverted evidence before the district court established that the union had determined that at least one of Carter's many grievances against his employer was meritorious. Union representative David Thornton attested to the fact that after investigating Carter's allegation of schedule manipulation, he had concluded that Carter was improperly denied approximately 60 hours of employment to which he was entitled by virtue of his seniority. Thornton further declared that Smith-Food King recognized its scheduling error and was willing to pay Carter for the lost hours provided that Carter sign a release absolving Smith-Food King of all liability for the incident. Smith-Food King also advised Thornton to inform Carter that it intended to report these earnings to the California Unemployment Insurance office.

Thornton's declaration indicates that he communicated Smith-Food King's offer to Carter but that Carter was unwilling to sign the requested release and was "reluctant" to have the earnings reported to the State Unemployment Insurance office. The evidence does not establish any further communication between the union and Carter regarding the schedule manipulation claim nor does it suggest the basis for the union's decision to drop the grievance. There is no indication in the record that the union had determined that the settlement offer was fair and reasonable; that it had advised Carter to accept the settlement offer; or, most important, that the union had informed Carter that it intended to stop pursuing his claim if he refused to agree to the terms of Smith-Food King's offer. Moreover, Thornton's deposition testimony reveals that he failed to investigate whether the requested release was customarily demanded by Smith-Food King of its employees prior to the settlement of grievances such as Carter's.

We do not believe that the district court was justified, based on the limited record before it, in concluding that the evidence established "beyond any doubt" that the union had made a non-arbitrary and good faith decision to drop Carter's scheduling manipulation grievance against his employer. The basis for the union's decision to stop pursuing that claim is simply not apparent from the limited record that was presented to the district court. In view of the inferences that may properly be drawn at the summary judgment stage from the union's failure to offer any explanation for its failure to pursue the seemingly valid scheduling grievance and in view of Carter's statements regarding the hostility of the union's business agent toward him personally and toward his claim, we conclude that Carter's claim against the union for breach of the duty of fair representation should not have been dismissed. ⁵

Although a triable question of fact exists as to whether the union breached its duty of fair representation, we affirm the district court's decision to grant summary judgment in favor of Union Business Representative David Thornton and Union President Larry Sooter. It is well settled that section 301 provides the basis for an action for breach of the duty of fair representation only against a union as an entity, and not against individuals who happen to hold positions in that union. See, e.g., Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-48, 82 S.Ct. 1318, 1324-25, 8 L.Ed.2d 462 (1962); Williams v. Pacific Maritime Association, 421 F.2d 1287, 1289 (9th Cir.1970). The individually named defendants were thus entitled to judgment as a matter of law.

III. The Pendent Tort Claims

In addition to the hybrid section 301/breach of duty claim, Carter's complaint...