Galindo v. Stoody Co.

• Decision Date: 15 July 1986
• Docket Number: 85-5921,D,Nos. 85-5920,AFL-CI,s. 85-5920
• Citation: 793 F.2d 1502
• Parties: 123 L.R.R.M. (BNA) 2705, 105 Lab.Cas. P 11,986 Marcus GALINDO, Plaintiff-Appellee, v. STOODY COMPANY, et al., Defendants. and Local 803, Allied Industrial Workers of America,efendant- Appellant. Marcus GALINDO, Plaintiff-Appellee, v. STOODY COMPANY, et al., Defendants. and International Union of Allied Industrial Workers of America,efendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1502

793 F.2d 1502

123 L.R.R.M. (BNA) 2705, 105 Lab.Cas. P 11,986

Marcus GALINDO, Plaintiff-Appellee, v. STOODY COMPANY, et al., Defendants. and Local 803, Allied Industrial Workers of America, AFL-CIO, Defendant- Appellant.

Marcus GALINDO, Plaintiff-Appellee, v. STOODY COMPANY, et al., Defendants. and International Union of Allied Industrial Workers of

America, AFL-CIO, Defendant-Appellant.

Nos. 85-5920, 85-5921.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 7, 1986.

Decided July 15, 1986.

Margaret Unwa, Newman & Faith, Inc., Covina, Cal., for plaintiff-appellee.

Matthew R. Robbins, Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, Wis., for defendant-appellant.

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

Before PREGERSON and BEEZER, Circuit Judges, and JAMESON, Senior District Judge ^*.

PREGERSON, Circuit Judge:

The International Union, Allied Industrial Workers of America, AFL-CIO ("the International") and Local 803, Allied Industrial Workers of America, AFL-CIO ("the Local") appeal from a judgment entered against them following a non-jury trial. The district court found that the International and the Local breached their duty of fair representation in connection with the layoff of Marcus Galindo by the Stoody Company ("Stoody"). Specifically, the district judge found the Local liable for failing to notify Stoody that Galindo was a union steward, and thus entitled to seniority, and the Local and International liable for failing properly to prepare and present Galindo's grievance at arbitration. We affirm the judgment as to the Local based on its failure to notify Stoody and reverse the judgment as to the Local and the International based on the presentation of Galindo's grievance.

BACKGROUND

Marcus Galindo was hired by Stoody in 1978. Galindo's employment at all times was governed by a collective bargaining agreement ("the Agreement") between Stoody and the Local and International. The Agreement provided that any layoffs would be conducted in reverse order of seniority. The Agreement also provided "super-seniority" status for union stewards:

In the event of a layoff, top seniority for stewards will give them preference for retention in the classification, on the shift and department they were elected to....

The Agreement further stated that "employees shall be represented by a steward for each foreman or supervisor from their respective department." Finally, the Agreement required that "the [Local] will notify the Company within three (3) days of any replacement of stewards."

In August 1982, Galindo was transferred to the "stores" department at Stoody. This department had only two employees--Galindo and a supervisor. In December 1982, Galindo asked Joe Peon, President of Local 803, if he was the steward for the "stores" department. Peon informed Galindo that he was a steward.

In December and January, Galindo, concerned about rumors of impending layoffs, asked Peon if he had notified Stoody of his stewardship. On each occasion Peon stated that although he had not notified Stoody of Galindo's stewardship, he would do so. On February 2, 1983, Galindo's name appeared on a list of employees to be laid off on February 7. When Galindo approached Peon about this situation, Peon said, "Yeah, don't worry about it."

Peon then sought, but failed, to convince Stoody's Director of Employee Relations that he had notified the company that Galindo was a steward. Peon then called Adam Marthe, an International representative, and admitted that he had "goofed" and needed help. At that time, Peon told Marthe that he had forgotten to tell Stoody that Galindo was a steward.

After meetings between representatives of Stoody and the Local failed to prevent Galindo's layoff, the Local, assisted by Marthe, filed a grievance on behalf of Galindo. When the matter could not be resolved through the grievance process, the Local decided to take the case to arbitration. In preparation for arbitration, Marthe asked Galindo for a written statement concerning his testimony, but Galindo refused. Additionally, Marthe consulted with the Local's secretaries who searched for records of the union notifying the company concerning the appointment of stewards, but found none.

At the arbitration hearing, Peon and Galindo testified that Peon had telephoned Stoody, in Galindo's presence, and informed a personnel department employee that Galindo was a steward. The arbitrator rejected this testimony in an opinion issued on June 1, 1983. In finding that the company was not obligated to recognize Galindo as a shop steward, the arbitrator found that the Union had failed to notify Stoody within three days of Galindo's "appointment" to a stewardship. The arbitrator also noted in passing that Galindo had never been formally elected a steward.

On October 19, 1983, Galindo filed suit in federal district court seeking relief against Stoody, the Local, and the International under 29 U.S.C. Sec. 185. The complaint alleged that Stoody had breached the Agreement by laying off Galindo (this claim was dropped before trial). The complaint also alleged that the Local and the International had breached their duty of fair representation by: (1) failing to use effective means to notify Stoody of Galindo's stewardship; (2) failing to "properly investigate Stoody's position concerning notification"; and, (3) advising Galindo that he was not permitted to retain legal counsel at the arbitration.

At trial, both Galindo and Peon admitted that they had lied at the arbitration hearing when they testified that Peon had informed Stoody by telephone that Galindo was a steward.

The district court held that the Local and the International had breached their duty of fair representation to Galindo in connection with his layoff. At the outset, the court ruled that Galindo was a steward even though he had never been elected and had never performed steward duties. It found that Peon waived the election requirement and that, in any event, an election would have been "meaningless" because Galindo was the only non-supervisory employee in the department and thus had the only vote. The district court also held that "no occasion [had arisen] for [Galindo] to discharge any of the specific duties of a steward" in the two months between his appointment and layoff.

The district court held that the Local's failure to notify Stoody was a breach of its duty of fair representation. As a separate finding of liability, the court found that the way Marthe had prepared and handled Galindo's arbitration constituted a breach of the duty of fair representation. The court stated:

Mr. Marthe's failure to insist upon written statements from the witnesses, his failure to attempt to dissuade the union president from giving perjured testimony, and his failure to investigate past practice adequately and establish past practice with respect to informal notification and the waiving of election, all of this presents a picture of gross and unjustifiable negligence and breach of duty.

The court found that the International was liable for this breach of the duty of fair representation because it undertook to represent Galindo. The court also found that the Local was liable because its duty to fairly represent one of its members, Galindo, was "non-delegable."

As to damages, the district court awarded lost wages and fringe benefits to Galindo up to December 1, 1984. ¹ Despite conflicting testimony, the court held that Galindo had never accepted or been offered an "equivalent" job, although he did work temporarily at another company. Accordingly, the judge awarded $26,000 to Galindo for the Local's failure to notify the company that Galindo was a steward. This amount represented lost wages and fringe benefits from Galindo's layoff in February 1983 to December 1, 1984, mitigated by earnings at interim jobs. The damages for inadequate representation at the arbitration hearing also represented lost wages and fringe benefits through December 1, 1984, but were calculated from the date of the hearing (May 16, 1983). The district court awarded $22,000 for this second breach; this sum was "subsumed" in the $26,000 award.

The Local and the International timely appealed. The appellants contend that the district court erred: (1) in finding that Galindo was a steward; (2) in finding that a breach of duty of fair representation had occurred; and (3) in computing damages. Appellants also contend that Galindo's suit was barred by the statute of limitations and that the issue of their conduct at arbitration was not before the court.

DISCUSSION

I. Whether Galindo's claims are barred by the statute of limitations.

Both parties agree that Galindo's claims are governed by the six-month statute of limitations of section 10(b) of the National Labor Relations Act. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983); Peterson v. Kennedy, 771 F.2d 1244, 1251 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). The parties disagree, however, on when the action accrued or, alternatively, whether the statute of limitations is tolled in this case.

A. Standard of Review

Where the facts are not in dispute, the date of accrual of a statute of limitations is a question of law reviewed de novo. See Acri v. International Association of Machinists and Aerospace Workers, 781 F.2d 1393, 1395 (9th Cir.1986); see also Aragon v. Federated Department Stores, 750 F.2d 1447, 1450 (9th Cir.) (whether limitations period is tolled is reviewed de novo ), cert. denied, --- U.S. ----, 106 S.Ct. 229, 88 L.Ed.2d 229 (1985), --- U.S. ----, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986). The dates on which the pertinent actions occurred in this case are not disputed.

B. Analysis

The question in this case is whether Galindo's duty of fair representation claims...