Chuy v. NATIONAL FOOTBALL LEAGUE PLAYERS'ASS'N, Civ. A. No. 76-1589.

• Decision Date: 15 July 1980
• Docket Number: Civ. A. No. 76-1589.
• Citation: 495 F. Supp. 137
• Parties: Donald CHUY v. NATIONAL FOOTBALL LEAGUE PLAYERS' ASSOCIATION.
• Court: U.S. District Court — Eastern District of Pennsylvania

495 F. Supp. 137

Donald CHUY v. NATIONAL FOOTBALL LEAGUE PLAYERS' ASSOCIATION.

Civ. A. No. 76-1589.

United States District Court, E. D. Pennsylvania.

July 15, 1980.

Leonard Schaeffer, Philadelphia, Pa., for plaintiff.

Malcolm L. Lazin, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

HUYETT, District Judge.

Plaintiff commenced this action alleging that the National Football League Players' Association (NFLPA) violated its duty of fair representation by refusing in bad faith to initiate and pursue his grievance against the Philadelphia Eagles Football Club (Eagles). Pending resolution of plaintiff's suit against the Eagles, this action was placed in civil suspense. That suit has now been resolved, see Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (en banc), and this action has been reactivated. Defendant has moved for judgment on the pleadings.

Plaintiff alleges that he sustained an injury during a professional football game. He further alleges that the Eagles thereafter violated his contract by failing to pay him the amounts due under the contract. Although plaintiff requested the NFLPA to initiate a grievance on his behalf, defendant allegedly failed to do so. According to plaintiff, defendant acted in bad faith, maliciously, and in violation of the duty of fair representation. He thereafter sued his employer in federal court on a number of theories. See Chuy v. Philadelphia Eagles Football Club, supra. In this action he attempts to recover from the NFLPA the attorney's fees he incurred in the action against the Eagles. In plaintiff's view, these fees were incurred due to the NFLPA's breach of its duty of fair representation.

"In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." 5 Wright & Miller, Federal Practice & Procedure § 1368, at 690 (1969). Affidavits, depositions, and other submissions permitted by Rule 56 have not been filed, and this motion has not been treated as one for summary judgment.

Defendant advances a number of arguments in support of its motion. First of all, defendant states that an essential element of a suit under § 301 of the National Labor Relations Act is an allegation that a collective bargaining agreement has been breached. Although we agree with this statement, see Leskiw v. Local 1470, IBEW, 464 F.2d 721 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972), we find that plaintiff's complaint satisfies that requirement. Plaintiff alleges a contractual violation by his employer. Complaint ¶ 13. Although the contract involved was the standard players contract, we note that the collective bargaining agreement, exhibit A to plaintiff's complaint, refers to the standard players contract. See Art. I, § 2, Art. III, and Art. IX, § 1(a). This distinguishes Local Union No. 67 v. Duquesne Brewing Co., 354 F.Supp. 1033 (W.D.Pa. 1973), in which the court found no mention in the collective bargaining agreement of individual contracts and therefore found no basis for incorporation by reference. In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Supreme Court noted that an employee need not proceed against both his employer and his union in the same suit. We therefore deem it of no significance that the Eagles are not a party to this action.

Defendant next relies upon plaintiff's failure to allege exhaustion of internal union remedies and to allege with particularity the facts in support of his conclusion that the defendant breached its duty. Although exhaustion of internal remedies is "a necessary requirement to a complaint against a union for breach of the duty of fair representation," Goclowski v. Penn Central Transportation Co., 571 F.2d 747, 757 (3d Cir. 1977), it has been suggested that defendants seeking dismissal for failure to exhaust must come forward with facts establishing both the availability of internal remedies and plaintiff's failure to abide by them. Dorn v. Meyers Parking System, 395 F.Supp. 779 (E.D.Pa.1975). Our review of the applicable case law suggests at a minimum that courts normally resolve this issue after examining affidavits on a motion for summary judgment. See, e. g., Goclowski v. Penn Central Transportation Co., supra. In the absence of such a record in this case, we believe that it would be premature to enter judgment in favor of defendant on this ground. For similar reasons we find defendant's argument regarding specific pleadings to be without merit. This is not a case like Hubicki v. A.C.F. Industries, Inc., 484 F.2d 519 (3d Cir. 1973), in which plaintiff, even at the summary judgment stage, had failed to show a factual basis for his claim. The procedural posture of that case and the instant case are sufficiently different to cause us to decline to grant judgment in favor of defendant on the pleadings.

Defendant argues further that the duty of fair representation does not apply in this case because it was not the exclusive bargaining representative of the players. Although the collective bargaining agreement does state that players will negotiate their own regular season pay, it specifies that "the League recognizes the Association as the sole and exclusive collective bargaining representative of all the professional football players employed by the Member Clubs with respect to all terms and conditions of their employment except as otherwise specified in this Agreement." Art. I, § 1. Moreover, Art. IX, which regulates grievances, states that grievances apply to both the collective bargaining agreement and the standard players contracts.

Nonetheless, defendant's argument causes us some concern. This concern stems from the fact that although a union may be vested with exclusive authority to negotiate an agreement, it may not enjoy the status of exclusive enforcer of the agreement. See Summers, "The Individual Employee's Rights Under the Collective Agreement: What Constitutes Fair Representation?", 126 U.Pa.L.Rev. 251, 254-56 (1977). The union's exclusive control over the processing and settlement of grievances, if it exists, is derived from the collective agreement itself. Id. at 256. As Professor Summers has stated:

By virtue of this contractually derived status as exclusive enforcer of the collective agreement, the union assumes a heavy responsibility to exercise its control on behalf of, rather than against the individual employee. The collective agreement creates rights in the individual employee which are enforceable under section 301. In the absence of a union controlled grievance procedure, the individual can sue and enforce his rights in his own behalf. The effect of the contractual provision giving the union exclusive control over the grievance procedure is to deprive the individual of his ability to enforce the contract on his own behalf. The union, having deprived the individual of his ability to enforce his rights, has a special obligation to act on his behalf.

Id. (footnotes omitted). The effect of this deprivation can be quite severe: in a case in which the union exercises control over the grievance procedure, and in which that procedure is not utilized for some reason, the employer faced with a § 301 suit by the employee can defend upon the theory that the employee failed to exhaust the grievance...