Metz v. Tootsie Roll Industries, Inc.
| Citation | 715 F.2d 299,114 L.R.R.M. 2340 |
| Decision Date | 16 August 1983 |
| Docket Number | B,No. 82-2945,No. 1,1,82-2945 |
| Parties | 114 L.R.R.M. (BNA) 2340, 98 Lab.Cas. P 10,402 Shirley METZ, Plaintiff-Appellant, v. TOOTSIE ROLL INDUSTRIES, INC., and Local Unionakery, Confectionery and Tobacco Workers' International Union of America, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Melissa J. Auerbach, Cornfield & Feldman, Robert N. Sodikoff, Greenberg Keele Lunn & Aronberg, Chicago, Ill., for defendants-appellees.
Richard J. Puchalski, Doss, Puchalski, Keenan & Bargiel, Ltd., Chicago, Ill., for plaintiff-appellant.
Before WOOD and CUDAHY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. *
This appeal involves the timeliness of an action brought against an employer both for breach of a collective bargaining agreement and for retaliatory discharge and against a union for breach of its duty of fair representation. The district court dismissed the complaint and we affirm. 1
On June 12, 1980, while employed by Tootsie Roll Industries, Inc. ("TRI"), the appellant, Shirley Metz, was injured at work. 2 Approximately six months later, on January 15, 1981, she was discharged by TRI for failing to return to work. Appellant apparently thought that the discharge was not for just cause and, upon discharge, notified Local Union No. 1, Bakery, Confectionery and Tobacco Workers' International Union of America (the "Union"), of her grievance.
The appellant was a member of the Union and entitled to the benefits of its collective bargaining agreement with TRI. That agreement provided that management was empowered to discharge employees only for cause, that discharge cases were subject to the grievance procedure, and that all grievances had to be filed within five days. 3
The Union failed to take action to initiate the grievance procedure. The only action it apparently took in the matter was to write a letter to TRI on May 5, 1981, stating that the appellant's discharge was in violation of the collective bargaining agreement. Although Metz alleged that she repeatedly complained, the Union failed to process her grievance. The Union has not taken any further action from May 5, 1981, to the present.
Metz filed this suit against TRI and the Union, the defendants-appellees, on June 23, 1982, in the district court for the Northern District of Illinois. The complaint alleged both federal and state law claims. The state law claim was cognizable only under the district court's pendent jurisdiction. The federal law claims include both a claim against the Union for breach of its duty of fair representation and a claim against TRI for breach of the collective bargaining agreement under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The state law claim is based upon the allegedly retaliatory discharge of the appellant by TRI for filing a workmen's compensation claim under the Illinois Workmen's Compensation Act.
The appellees filed motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and argued that the federal law claims were barred by the applicable statute of limitations. TRI gave two reasons for dismissal of the state law action. The first was a lack of pendent jurisdiction given the dismissal of the federal action. The second was based on documents attached to the motion to dismiss which indicated that the appellant did not file a claim for workmen's compensation until after she was discharged.
The district court dismissed the entire complaint with prejudice for "reasons set forth in the defendants'[-appellees'] memoranda." Plaintiff-appellant's motion to the district court to reconsider and clarify was denied and this appeal ensued.
A suit by an employee against a union for breach of the duty of fair representation and an action against an employer under § 301 of the Labor Management Relations Act for breach of the collective bargaining agreement are inextricably interdependent. "To prevail against either the company or the Union, ... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union." Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). Because these cases are not expressly governed by any federal statute of limitations, the appropriate statute of limitations to apply to this section 301/fair representation claim has been the subject of dispute. 4 The Supreme Court, however, in DelCostello v. International Brotherhood of Teamsters, --- U.S. ----, ----, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983), has recently clarified the appropriate treatment of this issue. DelCostello involved a suit arising out of a discharge by the terminated employee against the employer and the union. 5 The employee alleged that his discharge was in violation of the collective bargaining agreement and that the union had not represented him fairly in the grievance procedure. Id. at ----, 103 S.Ct. at 2285. The district court applied Maryland's 30-day statute of limitations for actions to vacate arbitration awards to both the claim against the employer and the claim against the Union. Id. With respect to the appropriate statute of limitations to apply in these actions, the Supreme Court said:
In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 [101 S.Ct. 1559, 67 L.Ed.2d 732] (1981), we held that a similar suit was governed by a state statute of limitations for vacation of an arbitration award, rather than by a state statute for an action on a contract. We left two points open, however. First, our holding was limited to the employee's claim against the employer; we did not address what state statute should govern the claim against the union. Second, we expressly limited our consideration to a choice between two state statutes of limitations, we did not address the contention that we should instead borrow a federal statute of limitations, namely, § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). These cases present these two issues. We conclude that *303s 10(b) should be the applicable statute of limitations governing the suit, both against the employer and against the union.
DelCostello, --- U.S. at ----, 103 S.Ct. at 2285 (emphasis in original) (footnotes omitted). Therefore, the statute of limitations to be applied in the case before us is the six month statute of limitations provided by section 10(b) of the National Labor Relations Act. 6 See Storck v. International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir.1983).
The appellant contends that the statute of limitations does not bar her § 301 fair representation claim. Appellant's first argument in support of this contention is that the statutory period still has not begun to run because no "final determination" has been made of her grievance. 7
In Hall v. Printing and Graphic Arts Union, Local No. 3, 696 F.2d 494 (7th Cir.1982), the plaintiff informed the union of her discharge and the union initiated discussions with the employer. The union refused to take the grievance to arbitration and notified the plaintiff that it would pursue her grievance no further. Id. at 496. In discussing the union's refusal to take the grievance to arbitration in connection with the issue of the appropriate statute of limitations to be applied to the employee's claim against the employer, we said:
Nothing in the language of the collective bargaining agreement convinces us that decisions by the Local not to pursue an employee's grievance all the way to arbitration are any less final or reliable than arbitration awards.
In the case before us, the appellant has alleged that under the collective bargaining agreement all cases of discharge are subject to the grievance procedure, that all grievances must be filed within five days and that the Union failed to initiate the grievance procedure. We believe, therefore, that under the language of the collective bargaining agreement, the failure and refusal of the Union to file the grievance within the specified time amounted to a final decision. This case, therefore, falls within the quoted language of Hall in that, under the collective bargaining agreement, the failure to file the grievance had the same finality effect as an arbitration award.
In Bigbie v. Local 142, International Brotherhood of Teamsters, 530 F.Supp. 402, 404 (N.D.Ill.1981), the plaintiffs requested that the union file a grievance on their behalf, but the union refused. The plaintiffs sought to have a different statute of limitations applied than that for vacation of an arbitration award because there had been no final and binding decision arising from an adjudication. Id. at 405. The court, in rejecting the plaintiffs' contention stated:
From the employee's viewpoint a union's refusal to launch the grievance procedure is just as "final and binding" as a refusal to carry forward a grievance at any point after the procedure has been invoked.
Id. From the viewpoint of the plaintiff in the case at hand, therefore, the alleged "refusal and failure" of the Union to act amounted to a final determination.
The appellant next argues that, even if the Union's alleged failure and refusal to take any further action did give rise to a cause of action, the statute still has not begun to run because neither defendant has informed her about the outcome of her request for the filing of a grievance. Both parties note the general rule that the limitations period begins to run "... when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation]." Hungerford v. United States, 307 F.2d 99, 102 (9th Cir.1962); see also N.L.R.B. v. Don Burgess Construction Corp., 596 F.2d...
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