Smith v. Local 7898, United Steelworkers of America

• Decision Date: 30 November 1987
• Docket Number: No. 86-2600,86-2600
• Citation: 834 F.2d 93
• Parties: 126 L.R.R.M. (BNA) 3232, 107 Lab.Cas. P 10,225 Richard SMITH, Plaintiff-Appellee, v. LOCAL 7898, UNITED STEELWORKERS OF AMERICA, an unincorporated association, Defendant-Appellant, and Georgetown Steel Corporation, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 93

834 F.2d 93

126 L.R.R.M. (BNA) 3232, 107 Lab.Cas. P 10,225

Richard SMITH, Plaintiff-Appellee, v. LOCAL 7898, UNITED STEELWORKERS OF AMERICA, an unincorporated association, Defendant-Appellant and Georgetown Steel Corporation, Defendant.

No. 86-2600.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1987.

Decided Nov. 30, 1987.

George Herbert Cohen (L. Hope O'Keefe, Bredhoff & Kaiser, Franklin G. Shuler, Cooper, Mitch & Crawford, Thomas J. Rubillo, Rubillo & Feck on brief), for defendant-appellant.

Ray P. McClain (Harriet McB. Johnson, McClain & Derfner on brief), for plaintiff-appellee.

Before SPROUSE and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

This is one of those hybrid actions in which a union member sues his union for alleged breach of its duty of fair representation and his employer for alleged violation of the collective bargaining agreement. A jury awarded the plaintiff damages against both defendants, and awarded him his attorney's fees against the union.

Upon the union's appeal, we reverse the judgment of the district court against the union, and remand for a new trial.

I.

Georgetown Steel Corporation operates a steel manufacturing plant in Georgetown, South Carolina. Under a collective bargaining agreement, Local 7898, United Steelworkers of America, is and has been the exclusive bargaining representative of the production and maintenance employees of Georgetown Steel.

The plaintiff, Richard Smith, was employed as a mechanic at Georgetown Steel in February 1974. Earlier, in July 1973, Calvin Richardson was employed as a mechanic in the plant.

In May 1980, Richardson was promoted to a "ten percent foreman." That is a temporary, testing position. An occupant of that position is paid the regular hourly wage of his old position plus ten percent, and is temporarily given an opportunity to perform many of the responsibilities of a foreman. As of August 1, 1980, Richardson was promoted to foreman. In that position, he was given all the supervisory responsibilities of a foreman and received a foreman's salary. Five months later, at Richardson's request, Georgetown Steel demoted him and reassigned him to his former hourly wage position as a mechanic.

The collective bargaining agreement provided that an employee, promoted to foreman, could be returned to his old hourly wage job without loss of seniority, if he had spent less than six months in the position of foreman. If Richardson's time as a "ten percenter" is added to the five months during which he served as foreman and treated as a time of foreman's service, Richardson would have had no unqualified right to return to the bargaining unit without loss of seniority. If the time of service as a ten percenter is not to be counted in computing the six months' limitation period, Richardson would have had the unqualified right to the reinstatement he was granted.

After Richardson's reassignment, Casselman, the union shop steward, filed a grievance on behalf of several mechanics. He contended that Richardson's time spent as a ten percenter should be counted in computing the six months' limitation, and that Richardson had lost his accumulated seniority as a mechanic. In response, Georgetown Steel expressed its agreement with Casselman's contention and discharged Richardson.

Richardson protested his discharge and filed an unfair labor practice charge with the Regional Director of the National Labor Relations Board. Thereupon, a union representative and a company official telephoned the office of the Regional Director of the NLRB and spoke to an unidentified representative of the Board there. The Board agent informed them that, in his opinion, Richardson's time spent as a ten percenter should not have been counted as time in foreman service and that, since he had been paying union dues during that period, he should be treated as a continuing member of the bargaining unit until his August promotion to regular foreman. There followed a joint meeting of representatives of the union and of management with Richardson. It was there agreed that Richardson should be reinstated to his bargaining unit position without loss of seniority.

In August 1981 Smith was laid off for six months. Because of his greater seniority, Richardson was not, and Smith would not have been laid off if he had been at the next higher place on the seniority list.

On August 25, 1983, two years after the August 1981 layoff and two and one-half years after Richardson had been reinstated, Smith filed a grievance protesting Richardson's reinstatement without loss of his seniority. The union refused to process the grievance upon the grounds that it was untimely and sought to resurrect a dispute that had long since been settled. Smith then filed this action against the union and his employer.

II.

We first must deal with the problem of time limitations.

Under DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), Smith's action against the union was time barred unless filed within six months from the time when he discovered his injury or should have discovered it through the exercise of reasonable diligence. Upon equitable principles, however, the running of the limitations period may be tolled or the union defendant estopped from asserting it. Cf. Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir.1986) (discussing limitations period under the Age Discrimination in Employment Act). Smith contended that his action was timely in light of those principles, and he prevailed in the district court on that point.

In 1981 Smith knew that Richardson had served as a foreman and then had been reinstated to his former position as mechanic without loss of seniority. Smith knew that Richardson was retained when Smith was laid off in August 1981 because of his lesser seniority. The employees had been told by representatives of both the union and management, however, that the National Labor Relations Board had ordered Richardson to be reinstated. Smith got that information indirectly from union sources, and reasonably believed that an order of the National Labor Relations Board gave the union no discretion to contest Richardson's reinstatement. He had no reason to suspect that the union had supported Richardson's grievance or played a role in his reinstatement.

The union may have acted reasonably in accepting the informal advice of the unidentified agent of the National Labor Relations Board, but the union's action in support of Richardson's grievance, although influenced by the informal advice it had received from the Board agent, is quite different from union acquiescence in a formal Board order. Until the facts became known to Smith, he had no reason to complain of the union's conduct.

Invocation of equitable principles may be unavailable to one who fails to act diligently. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984) (per curiam). At the time of Richardson's reinstatement, however, the union and the employer had a consistent, complete explanation for it. Smith had no reason to demand to see a copy of the Board's order or to...