Pejic v. Hughes Helicopters, Inc.
| Decision Date | 24 February 1988 |
| Docket Number | No. 86-6521,86-6521 |
| Citation | 840 F.2d 667 |
| Parties | 46 Fair Empl.Prac.Cas. 318, 45 Empl. Prac. Dec. P 37,824, 56 USLW 2555 Vojislav PEJIC, Plaintiff-Appellant, v. HUGHES HELICOPTERS, INC.; McDonnell Douglas Corporation; Electronic & Space Technicians Local 1553; William Fuller; Robert Malconian; Dick Kangis, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William D. Evans, Mathews and Evans, Los Angeles, Cal., for plaintiff-appellant.
William V. O'Connor and Ralph S. LaMontagne, Jr., Kern and Wooley; Howard
Z. Rosen, Posner & Rosen, Los Angeles, Cal., for defendants-appellees.
Appeal from the United States, District Court for the Central District of California.
Before FERGUSON, BEEZER and LEAVY, Circuit Judges.
Vojislav Pejic brought claims against Hughes Helicopters, Inc. (Hughes) and his union, Electronic and Space Technicians, Local 1553 (the Union), for discrimination based on national origin and age, breach of a collective bargaining agreement, breach of the duty of fair representation, and for breach of the Employee Retirement Income Security Act of 1974 (ERISA), following the termination of his employment with Hughes on June 7, 1984.
All but one of Pejic's claims were dismissed when the district court granted motions for judgment on the pleadings and summary judgment in favor of the defendants. At trial, the court dismissed Pejic's last claim for the ERISA violation. We affirm.
In October 1975, Hughes hired Pejic as a machinist. At that time, he signed a card authorizing Hughes to deduct union dues from his paycheck. Section XXVI, paragraph A of the collective bargaining agreement (the agreement) requires an employee to pay union dues as a condition of employment:
Any employee, who on the effective date of this Agreement is a member of the Union shall, on and after the thirty-first (31st) day thereafter, as a condition of his/her employment, maintain his/her membership in the Union for the duration of this Agreement, to the extent of paying the periodic dues uniformly required as a condition of retaining membership in the Union. No employee shall be considered in default of the obligation to pay dues until after the Union has given him/her and the Employer notice in writing and he/she has failed to pay his/her dues within the period of fifteen (15) days following receipt of such written notice. In the event the employee fails to pay his/her dues within the above mentioned fifteen (15) day period, the Employer shall terminate his/her employment if so requested by the Union in writing.
From August 9, 1983, to October 17, 1983, Pejic took a two-month unpaid leave of absence due to a car accident. Hughes did not deduct his union dues since Pejic had no paycheck. Instead, Pejic paid reduced dues directly to the Union.
During Pejic's leave of absence, another employee, John Minasian, received a promotion. Pejic filed a grievance, claiming his seniority entitled him to the promotion under the agreement. The Union refused to process the grievance, claiming it interpreted the agreement to not allow promotions for employees on leave.
Hughes did not deduct Pejic's dues after he returned from his leave. Hughes requested Pejic to sign a new dues deduction authorization card, because it could not locate his original card. Pejic refused. Hughes' employee benefits representative explained to Pejic that dues were a condition of employment whether or not he chose to have Hughes deduct them. Nevertheless, from October 1983 until his termination on June 7, 1984, Pejic did not send dues to the Union. Pejic argues that because the card required him to revoke the deduction in writing, Hughes was obligated to pay the dues.
On January 1, 1984, the Union sent Pejic a notice that he owed dues for three months, and that he was subject to termination. A Union steward informed Pejic in February 1984 that he should send his dues directly to the Union. Pejic replied that Hughes was authorized to deduct the dues from his paycheck.
On February 10, 1984, the Union wrote Pejic that his dues were delinquent and that dues were a condition of employment. The Union requested payment no later than February 24, 1984. It informed Pejic it would request his termination if he did not pay. Although Pejic denies receiving this letter, he wrote the Union on February 21, 1984, complaining that his seniority rights were not protected and his grievance was not handled properly, an apparent reference to the Union's refusal to process his grievance regarding the Minasian promotion.
On February 28, 1983, the Union wrote to Pejic, inviting him to its office to discuss his concerns regarding membership and the grievance. Again, the Union informed Pejic that the agreement required him to pay dues. The Union stated it would request his termination if he failed to pay by March 16, 1984.
On March 27, 1984, the Union wrote Hughes to request Pejic's termination for failure to pay dues. On April 1, 1984, Pejic wrote to Hughes that he was bypassed wrongfully for promotion. He complained about the Union's representation and payment of dues:
Please inform the union that I am ready to pay my membership dues, as soon as they let me know that my grievance has been resolved on the basis of truth and facts. And that the union is ready to protect my human and seniority rights with the company, as they are legally required to do so.
On June 7, 1984, Hughes notified Pejic of his termination for failure to pay union dues.
Pejic filed an unfair labor practice charge with the National Labor Relations Board (NLRB) regarding his lack of promotion. He alleged the Union "failed and/or refused to process the grievance of Vojislav Pejic for arbitrary, invidious and capricious reasons." The NLRB decided the evidence was insufficient to demonstrate a violation of the National Labor Relations Act, and refused to issue a complaint against the Union. The NLRB stated:
Pejic filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming discrimination on the basis of national origin. Later, he filed an amended complaint which claimed discrimination on the basis of age. The EEOC issued a right to sue letter on January 31, 1985.
Pejic, who is of Serbian ancestry, was born in 1935 in Yugoslavia. In 1979, four years after he was hired at Hughes, Pejic transferred to a department that William Fuller supervised. They got along well until Fuller, whose niece is married to a Croatian, found out that Pejic was Serbian. Pejic claims Fuller's attitude toward him changed abruptly. He claims that thereafter, Fuller and Fuller's friends constantly harassed him at work.
Pejic contends animosity exists between Serbians and Croatians because certain Croatians supported Hitler during World War II, and massacred Serbians and Jews. The record supports these assertions.
Pejic's age discrimination claim was based on the promotions of five employees under the age of forty, while Pejic, who was over forty, was bypassed. Pejic never applied for any of the promotions.
In his second amended complaint, Pejic alleges: (1) Hughes and the Union discriminated against him on the basis of national origin and age in violation of section 703, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec. 2000e-2, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Secs. 621-634; (2) Hughes breached its collective bargaining agreement in violation of section 301 of the Labor Management Relations Act of 1947 (LRMA); (3) the Union breached its duty of fair representation in violation of section 8(b) of the National Labor Relations Act (NLRA), as amended, 29 U.S.C. Sec. 158(b); and (4) Hughes failed to pay him benefits as required by ERISA, 29 U.S.C. Secs. 1132(1)(b), 1104(a)(1)(D) and 1140.
The district court granted the Union's and Hughes' motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) on the claims of breach of the duty of fair representation and breach of the agreement, respectively, finding these claims time-barred because Pejic failed to file within the six-month statute of limitations set forth in section 10(b) of the NLRA, 29 U.S.C. Sec. 160(b). The district court also granted Hughes' and the Union's motions for summary judgment on the claims of discrimination based on national origin and age. At trial, the district court dismissed the ERISA claim based on its earlier rulings.
A grant of a motion for summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractor's Ass'n, 809 F.2d 626, 629 (9th Cir.1987). Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if the pleadings and supporting materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
We review a dismissal under Federal Rule of Civil Procedure 12(c) de novo. Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir.1985).
An involuntary dismissal pursuant to Federal Rule of Civil Procedure 41(b) is viewed as a judgment in defendant's favor following a trial to the court. Great American Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir.1986). Findings of fact are reviewed under the clearly erroneous standard; questions of law are reviewed de novo. Id.
Because Pejic brought a hybrid action 1 against his employer and the Union, the six-month statute of limitations set forth in ...
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Employment
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