Hogan v. BROTH. OF RY., AIRLINE & SS CLERKS, ETC.
| Decision Date | 11 March 1986 |
| Docket Number | Civ. A. No. 83-0437-R. |
| Citation | 629 F. Supp. 1166 |
| Parties | Virginia B. HOGAN, Patt G. Abercrombie, Joyce F. Bailey, Calvin S. Barksdale, Darlene S. Bell, Virginia R. Branstetter, Gail B. Candis, Larry E. Covington, Betty P. Doss, Tommy L. Firebaugh, Jeanne F. Hall, Brenda M. Horne, Jill W. Hurt, Frank A. Lang, Robert L. Mack, William W. Manning, Hazel F. Maultsby, Shirley H. Minter, John P. Pinkard, Judith B. Pinkard, Lois M. Radcliff, Larry A. Rowe, C. Marshall Smith, III, Wallace E. Sutphin, Rufus H. Waggoner, III, Nancy G. Wells, Paul F. Willard, Belle S. Wyatt, Diane B. Babb, Mary T. Black, Ruby C. Whorley, Walter G. Bandy, Betty D. Sublett, Sherry M. Griffith, Joyce B. Whatson, Elaine F. Parks, Ramona J. Ellis, Sara C. German, Michael R. Hopkins, Margie P. Stinnett, and Jessie T. Swiercinski, Plaintiffs, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Con-Rail System Board of Adjustment No. 86; Brotherhood of Railway Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, MacArthur Lodge No. 1090; and, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Cavalier Lodge No. 537, Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Raymond J. La Jeunesse, Jr., Springfield, Va., for plaintiffs.
Joseph Guerrieri, Jr., Washington, D.C., Gary E. Tegenkamp, Roanoke, Va., for defendants.
This case was filed by forty-three (43) employees1 of the Norfolk and Western Railway Company (N & W) and its parent corporation Norfolk Southern, against their Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC).2 The court has jurisdiction in this case because it is an action arising under the Constitution and laws of the United States and under the Act of Congress which regulates commerce. 28 U.S.C. §§ 1331 and 1337. The court has directed that this case proceed as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs were permitted to maintain the class action on behalf of two classes:
The case is presently before the court on motions for summary judgment made by both plaintiffs and defendants. In their complaint, plaintiffs alleged that the defendants had breached their duty of fair representation when they did not specifically inform the plaintiffs of the option of being agency fee payers, but instead led the plaintiffs to believe that they had to be formal members of BRAC as a condition of their employment.3
The differences between the named plaintiffs and BRAC arose as a result of a strike against N & W by the Brotherhood of Locomotive Engineers (BLE) in September, 1982. BRAC had honored the strike. On or about September 20, 21 and 22, 1982, forty (40) of the named plaintiffs4 crossed the picket lines which BLE had set up or did work for N & W during the strike. On February 15, 1983, BRAC charged thirty-eight (38) of the named plaintiffs5 with violating a provision of the Constitution of the Grand Lodge and a resolution of the 1979 Grand Lodge Convention. On February 24, 1982, after notice was given to all those charged, a hearing Committee of Local Lodge 1090 conducted a meeting regarding the charges. None of the named plaintiffs attended the meeting.6 The Committee found the plaintiffs guilty of contempt and recommended a $100.00 fine against each and loss of all lodge benefits and privileges for one year from date of reprimand. (See complaint, paragraph 28). On March 10, 1983, fourteen (14) days after the hearing date, several of the plaintiffs sent a letter to Clifton Clark, President of Lodge 1090 of BRAC, asking that BRAC stop taking disciplinary action against them.7 On March 30, 1983, Lodge 1090's recording secretary sent letters to those charged and informed them of the Committee's recommendation. The letter also informed those involved that they had fourteen (14) days to appeal the decision to Lodge 1090. (See Appendix E to the complaint.) After this letter was sent, many of the plaintiffs wrote a letter to D.A. Bobo, International Secretary-Treasurer of BRAC. (See, complaint, paragraph 29.) These letters demanded that BRAC stop treating the plaintiffs as formal members. (See, Appendix F to complaint.) At a meeting of local Lodge 1090, the recommendation of the Trial Committee of fines and sanctions against forty-three (43) members and reprimands of ten (10) other employees, including plaintiffs, was formally adopted by the lodge. (See, complaint, paragraph 30.) On April 26, 1983, the recording secretary of Lodge 1090 sent letters to those affected by the lodge action. The letter informed those concerned about the lodge action and the appeal process to the International President of BRAC. This had to be done in twenty (20) days according to Article 10, Section 5, of the Grand Lodge Constitution. (See, Appendix G of the complaint.) At no time did the plaintiffs appear at the hearing or meeting nor did they try to utilize the internal appeals process of BRAC. (See, Affidavit of Mitchell M. Kraus, paragraphs 10-12.) Plaintiffs then filed this suit in which they ask for declaratory and injunctive relief. In a nutshell, the relief which they ask for is that the court declare the plaintiffs and class members are not members of BRAC, and that BRAC must inform all of its members, both present and future, of the "agency fee payer" option, in addition to formal membership in BRAC. The plaintiffs also want the disciplinary action to be declared void. (See, complaint, and amended and supplemental complaint.)
In their briefs filed in support of their motions for summary judgment, plaintiffs and defendants raise several issues. However, the court feels that it needs only to discuss two of the arguments. The first is the statute of limitations and the second is plaintiffs' failure to utilize BRAC's internal appeals process.
In a case dealing with what statute of limitations applies in a hybird case8 involving the breach of a duty of fair representation, the United States Supreme Court held that the six month statute of limitations in the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b) applies. Delcostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Plaintiffs argue that the six months statute of limitations does not apply in this case for several reasons. Their first argument is that this suit is brought under the Railway Labor Act (RLA), 45 U.S.C. § 151, et seq., while Delcostello, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), was decided under the NLRA. While the Fourth Circuit Court of Appeals has been silent on this issue, other Circuit Courts of Appeals have not. The First, Second, Third, Eighth, Tenth and Eleventh Circuits have all held that the six month statute of limitations of Delcostello, id., applies to the RLA. Linder v. Berge, 739 F.2d 686, 689 (1st Cir. 1984); Barnett v. United Air Lines, Inc., 738 F.2d 358, 363-64 (10th Cir.1984); Welyczko v. U.S. Air, Inc., 733 F.2d 239, 240 (2nd Cir.1984); Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1192 (3rd Cir.1984); Hunt v. Missouri Pac. R.R., 729 F.2d 578 (8th Cir.1984). This court agrees with these Circuit Courts of Appeals and holds that the six month statute of limitations also applies to the R.L.A.
Plaintiffs also argue that this is an action solely against a union and that it is not a hybrid breach of fair representation/contract while Delcostello, 462 U.S. 151, 103 S.Ct. 2281, was a suit against both the employer and the union. While this is true, the use of the six months statute of limitation would be more appropriate in this suit than in Delcostello. It is the element of the breach of the duty of fair representation which invokes the limitation period of the NLRA. The U.S. Supreme Court, in Delcostello, said that the fair representation claim was like an unfair labor practice in the right asserted and the considerations involved. If this was a breach of a collective bargaining agreement, then it would be governed by a state statute of limitations for a contract suit. This is the reasoning which the Eleventh Circuit used to hold that Delcostello applies in situations where union members sue only their union and not their employer. Erkins v. United Steelworkers of America, 723 F.2d 837 (11th Cir.1984). This court feels that this analysis is sound.
Plaintiffs also argue that since the complaint in this case was filed before the U.S. Supreme Court's decision in Delcostell...
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