Echols v. Chrysler Corp., 77-1529
| Decision Date | 27 October 1980 |
| Docket Number | No. 77-1529,77-1529 |
| Citation | 633 F.2d 722 |
| Parties | 105 L.R.R.M. (BNA) 2987, 89 Lab.Cas. P 12,344 Harold ECHOLS, Plaintiff-Appellant, v. CHRYSLER CORPORATION et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John A. Murphy, Glotta, Adelman, Dinges, Davis, Middleton, Riley & Murphy, Detroit, Mich., for plaintiff-appellant.
William S. Hurst, Keith A. Jenkins, Detroit, Mich., for Chrysler.
Bruce A. Miller, Duane F. Ice, Miller, Klimist, Cohen, Martens & Sugerman, Detroit, Mich., for Union.
Before LIVELY, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.
Appellant Harold Echols filed this action April 1, 1976, under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against the Chrysler Corporation, his former employer, and the United Automobile Workers of America and its Local No. 212. Chrysler was charged with violating the collective bargaining agreement in various particulars. The Union was charged with failure to represent Echols fairly "in that the Union, in a grossly negligent and malicious and dishonest manner" settled plaintiff's discharge agreement on February 29, 1969, and in refusing to file a pension grievance for Echols.
Before filing this action, Echols was unsuccessful in processing a complaint through the National Labor Relations Board. His suit in the present case was filed more than seven years after the grievance settlement which was the cause of his asserted loss of pension credits.
All parties filed motions for summary judgment with then District Judge Cornelia Kennedy (now a judge of this court). On June 3, 1977 Judge Kennedy granted summary judgment in favor of the Union on the ground that plaintiff's asserted right of action against the Union was barred by the three year statute of limitations. Summary judgment was granted to Chrysler on several grounds, one of which was "the statute of limitations bars any civil action based on Chrysler's conduct towards plaintiff's employment in 1969 and 1970."
While the present suit was pending on appeal, this court announced its decision in Gallagher v. Chrysler Corp., 613 F.2d 167 (6th Cir.), cert. denied, --- U.S. ---, 101 S.Ct. 119, 66 L.Ed.2d 48 (1980), holding that the Michigan three year statute of limitations applies to suits under the Labor Management Relations Act against both a labor union and an employer.
On July 25, 1980, this court entered the following order to show cause:
It is ORDERED that the parties show cause, by simultaneous briefs filed on or before August 8, 1980, why the statute of limitations questions presented on this appeal is not controlled by the decision of this court in Raymond R. Gallagher v. Chrysler Corporation, 613 F.2d 167 (6th Cir. 1980), and why the other issues should not be submitted on briefs, without oral argument.
Simultaneous responses to this show cause order shall be filed by the parties on or before August 8, 1980.
Both appellees have filed responses to the show cause order, agreeing that the statute of limitation question presented by this appeal is controlled by the decision of this court in Gallagher, and that the other issues should be submitted on briefs, without oral argument. Appellant has filed no response to the show cause order.
Accordingly, the case has been assigned to the hearing calendar of this court on briefs, without oral argument. We conclude that the district court correctly granted summary judgment in favor of both Chrysler and the Union because the cause of action against both appellees is barred by the Michigan three year statute of limitations. Gallagher, supra, 613 F.2d 167.
Echols contends that the statute of limitations was tolled by the alleged fraudulent concealment by appellees of the disciplinary layoff status of Echols in 1969 and its effect on his pension credits. In order to dispose of this contention and the issue discussed in Part III of this opinion, the facts should be set forth in more detail.
Judge Kennedy summarized the facts as follows:
The amended complaint alleges the following facts. Plaintiff began working for Briggs Manufacturing Company on April 21, 1944, and continued in that employment after Briggs was acquired by Chrysler. On October 21, 1963 plaintiff sustained a back injury when he slipped on some welding rods, and on September 18, 1967 he sustained an eye injury (apparently from an arc welding accident) for which he received one month's workmen's compensation payments. After returning to work plaintiff disagreed with Chrysler officials as to his physical ability to work on a fender line, plaintiff complaining that his back injury incapacitated him. Plaintiff filed a claim with the Michigan Bureau of Workmen's Compensation on November 9, 1967. He was finally discharged by Chrysler on January 10, 1968, for refusal to accept work on the fender line. A grievance was filed over this discharge, which was settled by defendant Local 212 "in bad faith and in a grossly negligent manner" on February 9, 1969; under the terms of this settlement plaintiff was offered reinstatement "in accordance with his seniority and in accordance with his medical restrictions and upon his return to work his discharge was to be changed to a disciplinary lay-off".
Thereafter, On August 25, 1969, an administrative law judge of the Workmen's Compensation Bureau found that plaintiff was disabled from work on the fender line as a result of his back injury and eye injury. Previously, plaintiff had attempted to return to work on March 21, 1969, and on April 1, 1969, but was found to be "not physically capable of returning to work by Defendant CHRYSLER CORPORATION". (Chrysler's post-hearing brief states that this finding was based on hypertension and tachycardia, rather than the alleged back pain that precipitated his discharge). On May 11, 1970, plaintiff was found to be physically able to return to work, and was then reinstated.
On June 13, 1975, plaintiff applied for early retirement pursuant to the "30 and out" provision due to become effective on October 31, 1975. On August 25, 1975, "Plaintiff was informed jointly by defendant Corporation and defendant Union" that he was not eligible for early retirement because on October 31, 1975 he would have only 349 months of pension credits, 11 short of the 360 required. A Mr. Jennings of the International Union told plaintiff the defendant unions would not help him in this matter "because he was a troublemaker." In October of 1975 plaintiff was told that the union would not file a grievance for him regarding his pension denial, and on November 26, 1975, the Pension Board of Administration informed him "that his request for early retirement could not be granted based upon the records supplied to it by defendant CHRYSLER CORPORATION."
Appellant asserts that the statute of limitations was tolled by the actions or inaction of appellees. Under MCLA 600.5855 if a person who may be liable for a claim fraudulently conceals the existence of the claim from the knowledge of the person entitled to sue, the action may be brought within two years after the person discovers or should have discovered the existence of the claim. Appellant contends the allegations in his complaint and affidavits are sufficient to raise an issue of fraudulent concealment.
The appellees respond that the appellant did not raise this question in the district court and is precluded from raising it on appeal. Appellees further assert that the allegations of appellant are insufficient to toll the statute under Michigan law. We conclude that the district court correctly held the three year limitation period barred the action of appellant.
In her opinion and order granting appellees' motions for summary judgment, and in her order denying a motion for a new hearing, Judge Kennedy specifically noted the appellant did not allege that either appellee was guilty of fraudulent concealment of the grievance settlement terms. Appellant asserts that language in his complaint stating the appellees "arbitrarily and maliciously refused to state the precise reasons why plaintiff lack the needed pension credits" and language in his affidavits stating he was never informed of the disciplinary layoff status sufficiently alleged fraudulent concealment. The vague language in the complaint, however, appears to allege that the appellees in 1975 refused to give the appellant the reasons why he lacked pension credits, not that the appellees in 1969 fraudulently concealed the grievance settlement terms. The appellant's affidavits merely allege he was never informed of the disciplinary layoff status, not that the appellees in 1969 refused to inform him of or intentionally concealed the terms of the grievance settlement.
Under Michigan law the alleged acts of the appellees did not amount to fraudulent concealment tolling the statute. In DeHaan v. Winter, 258 Mich. 293, 296, 241 N.W. 923 (1932),...
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