Demars v. General Dynamics Corp.

• Decision Date: 11 December 1985
• Docket Number: No. 85-1276,85-1276
• Citation: 779 F.2d 95
• Parties: 121 L.R.R.M. (BNA) 2112, 103 Lab.Cas. P 11,725 John T. DEMARS, Plaintiff, Appellant, v. GENERAL DYNAMICS CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 95

779 F.2d 95

121 L.R.R.M. (BNA) 2112, 103 Lab.Cas. P 11,725

John T. DEMARS, Plaintiff, Appellant, v. GENERAL DYNAMICS CORPORATION, Defendant, Appellee.

No. 85-1276.

United States Court of Appeals,

First Circuit.

Dec. 11, 1985.

Douglas M. Brooks with whom Francis C. Newton, Jr., Boston, Mass., was on brief for plaintiff, appellant.

Richard W. Benka with whom Foley, Hoag & Eliot, Boston, Mass., was on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and CEREZO, ^* District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiff-appellant John T. Demars ("Demars") appeals from a decision of the United States District Court for the District of Massachusetts granting summary judgment to defendant-appellee General Dynamics Corporation ("GDC") in an action for wrongful termination of employment, and denying appellant's motion to amend his complaint to add, inter alia, a negligence claim. Because we find no merit in any of appellant's contentions, we affirm.

I.

The basic facts of this case are simple and uncontroverted. Demars resigned from employment as a pipefitter for GDC in November 1980. In December 1981 and January 1982, GDC sent recall notices to employees who had been laid off by the company. Demars was erroneously included among those recalled even though, having resigned, he was not on "layoff" status and eligible for recall. He worked for one shift on January 11, 1982, before GDC, recognizing the error, terminated his employment the following day.

On January 20, 1982, Local 5 of the Industrial Union of Marine and Shipbuilders Workers of America ("Union"), to which Demars belongs, filed a grievance contesting the termination on behalf of plaintiff. The Union decided not to pursue the grievance to arbitration and withdrew its complaint on July 23, 1982, apparently without formally notifying Demars of this fact. Such a withdrawal represented, under the contract, a final and binding disposition of Demars' grievance.

On December 27, 1984, ¹ plaintiff filed this action in the Massachusetts superior court, challenging his termination as unlawful under the state law doctrine of wrongful termination. Specifically, Demars alleged that he resigned from his former employment in the belief that he had been recalled, that he entered into an employment contract with GDC between December 23, 1981, and January 11, 1982, and that GDC broke its agreement by terminating him without good cause. Plaintiff asked for $100,000 in damages for "lost wages and benefits, severe emotional distress and other injuries."

GDC removed the case to the district court under 28 U.S.C. Sec. 1332(a)(1) and moved for summary judgment on the grounds that Demars' claim of wrongful termination was governed by section 301 of the Labor Management Relations Act, 28 U.S.C. Sec. 185(a) ("LMRA"), not state law, and was thus time-barred by the applicable six-month statute of limitations. Conceding that the action as filed was governed by section 301, plaintiff asked for leave of the court to amend his complaint to add the Union as a defendant, to add a "hybrid" section 301/fair representation claim against GDC and the Union, and to add a state law claim against GDC for negligently recalling him.

On March 11, 1985, the court granted GDC's motion for summary judgment. First, it held that allegations of unfair termination are governed by the LMRA, not state law. Second, plaintiff's rights under the LMRA would be governed by the six-month statute of limitations under section 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 160(b), and thus time-barred. The court also denied leave to amend the complaint because "even as amended," the complaint "would not survive as against GDC and any action against the Union is based on an independent set of facts unconnected with GDC."

On appeal, Demars contends that the district court abused its discretion in granting summary judgment to GDC. He argues that his claim against his former employer is timely because the applicable six-month statute of limitations was tolled by the Union's fraudulent concealment. Demars further contends that he has a valid state law claim against GDC for negligent recall, and that the court erred in denying him leave to amend his complaint so as to insert that claim.

II.

A. Statute of Limitations

The standard of review on a motion for summary judgment under Fed.R.Civ.P. 56 is essentially the same inquiry undertaken by the district court--whether viewing the record in the light most favorable to the opposing party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See, e.g., Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 177 (1st Cir.1982). Because we find no disputed issues of fact with respect to whether Demars' section 301 is time-barred or any other matter, we hold that the granting of summary judgment to GDC was not an abuse of discretion.

An employee is ordinarily expected to settle disputes arising out of a collective bargaining contract with his employer through established grievance procedures. The employee may, however, bring an action against his employer for violating a collective bargaining agreement if the union violated its duty of fair representation by, for example, failing to properly prosecute the employee's grievance. In a "hybrid" case, an employee must typically prove both that the employer violated its contract and that the union breached its duty, since the two claims are inextricably linked. See, e.g., Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967).

The district court properly found, and plaintiff concedes, that the limitations rule announced in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), governs both Demars' section 301 claim against GDC and any fair representation claim he may have against the Union. In DelCostello the court held that the applicable statute of limitations as to both the employer and the union in a hybrid section 301/fair representation case is section 10(b) of the NLRA, which provides that claims for unfair labor practices must be brought within six months from the accrual of the cause of action.

Such a cause of action normally accrues when a plaintiff "could first have successfully maintained a suit based on that cause of action." Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973). As demonstrating the Union's breach of duty is an "indispensable predicate" to suit, Mitchell, 451 U.S. at 62, 101 S.Ct. at 1564, Demars' cause of action accrued when he received "notice of the alleged union wrongdoing," McNutt v. Airco Industrial Gases Division, 687 F.2d 539, 543 (1st Cir.1982). See Santos v. District Council of New York, 619 F.2d 963, 969 (2d Cir.1980); Bradford v. General Telephone Co., 618 F.Supp. 390, 394 (W.D.Mich.1985); Scaglione v. Communications Workers of America, Local 1395, 586 F.Supp. 1018, 1021 (D.Mass.1983), aff'd, 759 F.2d 201 (1st Cir.1985) (per curiam). Here, the earliest Demars knew or should have known about the Union's purported breach of duty to him was July 23, 1982, when the Union withdrew the grievance it had filed on his behalf.

Demars contends that he did not discover that the Union had withdrawn his grievance until February 22, 1985, when GDC moved for summary judgment. Demars says that he could not earlier have discovered the facts necessary to his cause of action because the Union had misled him into thinking it was actively pursuing the grievance when it was not, especially by failing to notify him of the withdrawal of the grievance. Therefore, Demars asserts, the statute is tolled as to both the Union and GDC because of the Union's fraudulent concealment. Since we find that the statute of limitations was not tolled even as to the Union, we need not reach the issue of whether fraudulent acts of the Union could toll the statute as to GDC.

Under federal law, a defendant's "fraudulent concealment" may toll the statute of limitations until plaintiff discovers the facts that form the basis of his cause of action, so long as two conditions are met: first, "defendant raising the limitations defense must have engaged in fraud or deliberate concealment of material facts relating to his wrongdoing," and second, "plaintiff must have failed to discover these facts within the normal limitations period despite his exercise of due diligence." Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 101 (1st Cir.1979); see also Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1521 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446 79 L.Ed.2d 765 (1984); Richards v. Mileski, 662 F.2d 65, 69 (D.C.Cir.1981). Here, however, Demars has not set out facts showing a genuine issue of either deliberate concealment by the Union or due diligence on his part.

Demars attested that an unidentified Union representative, at some unspecified date after his grievance was filed, assured him that the Union would "keep trying" in some unspecified manner, and that "if anything changed [the representative] would let him know immediately." The force of this statement is weakened by Demars' concession that during this same conversation the representative also informed him that the Union "had pursued his grievance through 'all three levels' of appeal," and that the Union "had done all [it] could do at this time." Considering also that Demars failed to give the date when these remarks were made, ² it might seem unlikely that a reasonable trier would conclude that the Union was...