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Moore v. Sunbeam Corp.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


March 10, 1972

JAMES MOORE, PLAINTIFF-APPELLANT
v.
SUNBEAM CORPORATION ET AL., DEFENDANTS-APPELLEES

Kiley, Cummings*fn* and Stevens, Circuit Judges.

Author: Stevens

STEVENS, C.J.:

James Moore was discharged by Sunbeam Corporation on October 17, 1967. He claims that the corporation committed an unfair labor practice, that his union*fn1 breached its duty to represent him fairly, and that he is the victim of racial discrimination proscribed by the Civil Rights Act of 1964. His appeals from adverse rulings by the Labor Board and the district court were consolidated in this court. In brief, the issues are whether the Board correctly construed the collective bargaining agreement; whether the union was required to submit Moore's grievances to arbitration; and whether Moore's civil rights claims are barred as untimely.

Although the three issues arise out of the same transaction, many factual details relate primarily to only one issue. We shall, therefore, start by considering the unfair labor practice charge which was the subject of a full evidentiary hearing before a Labor Board Trial Examiner. We shall then discuss the basis for the summary judgments entered in favor of the union and the employer, respectively, in the district court action.

I.

The union represents approximately 2,400 employees in five plants operated by Sunbeam in the Chicago area. Moore, a union member, was one of approximately 1,200 employees at the main plant.

In the collective bargaining contract Sunbeam agreed to a four-stage grievance procedure, culminating, if the union so demanded, in arbitration. On its part, the union, for itself and for its members individually, broadly agreed not to strike, to picket, or to encourage any interference with orderly production.*fn2 During the course of his employment*fn3 Moore initiated several grievance proceedings*fn4 and filed four unfair labor practice charges against Sunbeam. Apparently none of the grievances was successful. Two of the Labor Board charges were withdrawn voluntarily;*fn5 the general counsel refused to issue complaints on the other two.*fn6 Frustrated by his inability to obtain relief through regular channels, in February of 1967 Moore wrote to the president of Sunbeam requesting a personal interview. He was advised that the president would not set a precedent by meeting with an individual employee on a grievance matter.

On August 11, 1967, Moore again wrote to Sunbeam's president demanding a meeting with him and with the union's district representative (Janas). The letter reviewed Moore's unredressed grievances and expressed his feeling that "top management is systematically denying me the opportunity to advance to the full extent of my ability . . . only because I am a Negro." He stated that if a meeting could not be arranged, "the only alternative [is] to present my grievance to my co-workers, and the public." Suprisingly, this letter evoked no response whatsoever from Sunbeam.*fn7

In late September Moore added a few paragraphs to his unanswered letter, labeled it an "Open Letter to Mr. Robert P. Gwinn, President," and made 3,500 copies for distribution to various public officials and agencies, his fellow employees, and members of the public. The added paragraphs asked for support in making equal opportunity in employment a fact and requested supporters to "refrain from buying any Sunbeam appliances . . . until justice has been served." At the end of the open letter Moore stated that he would march in front of the Sunbeam plant on October 24, 1967, "in protest of the conditions here."

On October 2, 1967, Moore gave a copy of the open letter to a fellow employee and discussed it briefly with her. Later that day the letter came to the attention of Sunbeam's Personnel Department and on October 3 Moore was suspended. He distributed his "petition" at various plant gates that day and on the next three days.

During this period he had several discussions with union representatives. On October 5 Janas prepared a grievance covering Moore's suspension; at that time Janas advised Moore that his actions violated the union contract. Accordingly, Janas responded to inquiries from union stewards by advising that the union would not sanction picketing by Moore. Moore nevertheless insisted that he would march on October 24 without union support.

On October 11 a second stage grievance meeting regarding Moore's suspension was held. Nothing was resolved. On October 17 he was discharged. Both the discharge letter and a letter written to the union on the same day relied, in part, on the ground that Moore was seeking to encourage a strike and product boycott in violation of the union contract.

On October 24 Moore did picket for most of the day, but with almost no support from fellow employees. It is reasonably accurate to state that although he attempted to engage in collective or concerted activity, he actually conducted a one-man demonstration.

A week later a third step grievance meeting was held, but the company refused to reinstate Moore. The union subsequently rejected Moore's request for arbitration of his suspension and discharge grievance.

Thereafter, Moore filed unfair labor practice charges against both the union and the company. The charge against the union was dismissed. The general counsel issued a complaint against Sunbeam alleging that its rule against solicitation by employees was too broad and that Moore had been discharged for engaging in concerted activity protected by § 7 of the Labor-Management Relations Act.

The Trial Examiner and the Board found the solicitation rule invalid, but upheld the discharge. No issue involving the rule is before us since Sunbeam has made the modification directed by the Board.

Although both the Trial Examiner and a majority of the Board concluded that Moore's activity was not protected by the Act, their reasoning was different. The Trial Examiner, stressing the individual character of Moore's campaign, found that his activity was not "concerted," and therefore not covered by the statute. The Board, stressing his expressed intentions and requests rather than his accomplishments, regarded his activity as "concerted," but prohibited by the no-strike clause of the contract. The dissenting member of the Board agreed that Moore was engaged in concerted activity, but felt that he did not violate the no-strike clause.

Certain propositions of law are not disputed. There are kinds of concerted activity that are not protected by the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 8 L. Ed. 2d 298, 82 S. Ct. 1099. Specifically, conduct which violates a no-strike clause in a collective bargaining agreement is not protected and may give rise to discharge. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246, 8 L. Ed. 2d 462, 82 S. Ct. 1318. The critical question here is whether Moore's conduct violated Article 1, Paragraph 5, of the agreement between Sunbeam and the union.

In answering this question we do not merely consider dictionary definitions of the word "strike," or even judicial interpretations of that term in other contexts. Of greater importance is the understanding of the parties who negotiated and drafted the contract before us, the interpretation of administrators who specialize in labor relations matters, and the purpose which the contractual provision was intended to serve. We thus put to one side the dissenting Board member's persuasive exposition of why Moore's conduct was not a conventional strike.

Moore had embarked on an independent effort to resolve his dispute with his employer by means other than those which the union, on his behalf, had agreed to employ. In substance, the union and its individual members had agreed to abstain from economic warfare or collective pressures during the term of the contract. To the extent that Moore's conduct can properly be viewed as concerted, it was directly opposed to the intent of the no-strike clause. He asked his co-workers to "refrain from buying any Sunbeam appliances" and for support "to obtain . . . better working conditions for all Sunbeam employees."*fn8 The company, quite reasonably, viewed this overture to collective action as a violation of the employees' agreement not to encourage any interference with work or any picketing of the company's plant or premises.

Of greater significance, the union agreed with this construction of the contract. Janas so advised Moore in advance of the discharge, but Moore nevertheless persisted in his independent course of action. After the discharge, the union declined to submit the matter to arbitration. The union's interpretation of the scope of its own undertaking is entitled to considerable respect.*fn9

We also respect the Labor Board's appraisal of the issue. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456. It might be argued that that case applies only to questions of fact decided by the Board and that we are not bound to follow the Board's construction of written instruments.*fn10 It does not follow, however, that the expertise of the Board is not relevant in the interpretation of a labor contract. When, as in this case, the facts must be interpreted in connection with the contract language, the function of the Board in promoting the national labor policy is particularly important. The policy considerations discussed by the Supreme Court in NLRB v. Erie Resistor Corp., 373 U.S. 221, 10 L. Ed. 2d 308, 83 S. Ct. 1139, deserve mention:

"Here, as in other cases, we must recognize the Board's special function of applying the general provisions of the Act to the complexities of industrial life [cite], and of '[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases' from its special understanding of 'the actualities of industrial relations.' [cite] 'The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.'" 373 U.S. at 236.

There is an undeniable national labor policy to promote arbitration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912, see also Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583. No-strike pledges constitute the quid pro quo for a binding arbitration agreement, Lincoln Mills at 455; Boys Markets at 247-248; Steelworkers v. American Manufacturing Co., 363 U.S. 564, 567, 80 S. Ct. 1343, 4 L. Ed. 2d 1403, and may even be enforced by injunction notwithstanding § 4 of the Norris-LaGuardia Act. Boys Markets at 249-253. A no-strike pledge may even be implied. Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571. Since the contract before us contains an express no-strike pledge, we think it is reasonable to defer to the Board's broad interpretation of that clause as applied to the facts before it. Its interpretation is entirely consistent with the national labor policy and with the union's own understanding of the agreement.

In addition to the agrument that the Board misconstrued the contract, Moore argues that in any event the discharge was not predicated on his breach of contract. The record does indicate that additional factors motivated the company and the no-strike clause was not mentioned in the suspension letter on October 4.*fn11 However, the discharge letter on October 17 did rely, in part, on the charge that Moore was encouraging a strike and a boycott,*fn12 and the letter to the union on the same day specifically identified the relevant provision of the contract. The evidence does not support Moore's contention that his breach of the contract was a subsequently contrived justification for the October 17 discharge. On the contrary, it is clear that the Board's decision was supported by substantial evidence. On this factual question, the rule of Universal Camera, supra, is unquestionably applicable.

II.

About a year after his discharge, Moore filed a three-count complaint against Sunbeam and the union. Federal jurisdiction was invoked under Title VII of the Civil Rights Act of 1964*fn13 as to count I and under § 301(a) of the Labor-Management Relations Act*fn14 as to counts II and III. The civil rights count is dealt with in Part III of this opinion. We here consider the two counts brought under § 301 for breach of the collective bargaining agreement. Summary judgment for Sunbeam and the union was granted on both § 301 counts.*fn15

The structure and allegations of the complaint make it clear that Moore was attempting to come within the § 301 jurisdiction of the district court as formulated by the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903. The Court said, "Since the employee's claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced." Id. at 184. The union's contract with Sunbeam contained both no-strike and binding arbitration clauses,*fn16 accordingly, the Vaca decision is applicable. The Supreme Court specified two circumstances which would nevertheless permit a § 301 suit: (1) when the conduct of the employer amounts to a repudiation of the contractual procedures, or (2) when the union has sole power to invoke the higher stages of the grievance procedure and wrongfully refuses to process the grievance. Id. at 185.

Moore has not alleged that Sunbeam repudiated the contractual grievance provisions with respect to any of the incidents described in the complaint. He predicates § 301 jurisdiction on only two specific incidents: a failure to promote him to a leadman position on October 24, 1966; and the suspension and discharge in October, 1967. In his deposition, two additional specific matters are discussed: the failure to assign him appropriate leadman work when he held that position in department 437 from October 25, 1966, to December 14, 1966; and his allegedly improper transfer from a leadman position to power truck operator on January 10, 1967. Moore testified that grievances were instituted and processed as to the October 24, 1966, incident and as to his work assignment between October 25 and December 14. These grievances were not, however, carried to arbitration. No grievance was filed as to the January 10 transfer; Moore clearly failed to exhaust contractual remedies on that issue. Finally, as indicated in part I of this opinion, the suspension and discharge issue was taken through the third step grievance procedure. Sunbeam did not repudiate the contractual procedure either as to specific incidents mentioned in the complaint or as to those discussed by Moore in his deposition.*fn17

Moore's only possibility of coming within the Vaca standards, therefore, is to establish a wrongful refusal on the part of the union to take the grievances to arbitration. The Supreme Court held in Vaca that a union has no mandatory obligation to submit every employee claim to arbitration. 386 U.S. at 191-192. A labor contract must be construed in its totality. Unfortunately, Moore has not placed before us a complete copy of the contract in question;*fn18 he merely quotes portions of it in his complaint. However, we are assuming that the contract contained a no-strike clause and a clause making the grievance procedure exclusive,*fn19 with binding arbitration at the discretion of the union. Thus, part of the consideration for management's agreeing to the entire contract package was that it could rely on the union to screen grievances and demand arbitration only on those which the union in good faith thought meritorious. Moore, in accepting the benefits of the labor agreement also had to accept its burdens -- in this case he had no choice but to rely on the grievance procedure specified, which included the provision that the union could decide whether or not to demand arbitration.

The Supreme Court in Vaca left no doubt that a union owes its members a duty of fair representation, but that opinion also makes it clear that the union may exercise discretion in deciding whether a grievance warrants arbitration. Even if an employee claim has merit, a union may properly reject it unless its action is arbitrary or taken in bad faith. 386 U.S. at 193. In this case we believe the union properly evaluated the merits of Moore's claims and can find no basis for the charge that it did not fairly represent him simply because it terminated the grievance proceedings at the third stage and did not demand arbitration of his claims, which were dubious at best.*fn20

The summary judgment dismissing Moore's § 301 claims is affirmed.

III.

In a separate order entered on February 3, 1970, the district court dismissed Moore's civil rights claims. He had alleged that Sunbeam had discriminated against him because of his race by denying him a position as "leadman" on October 24, 1966, and thereafter by engaging in "continuous harassment and discrimination." The district court held that the allegations based on the October 24, 1966, incident were untimely, and that those asserting continuous discrimination had not been the subject of a charge filed with the Equal Employment Opportunity Commission.

Before analyzing the specific timeliness issues presented by this record, a brief comment on the statutory scheme is necessary. As a part of a compromise which made it possible to pass the Civil Rights Act of 1964, its sponsors agreed to the inclusion of provisions which impose an extremely short limitations period on private claims and require a resort to state procedures, where available, as a condtion precedent to a private action in the federal courts.*fn21 If the state where the alleged violation occurred provides no remedy, the complainant must file his charge with the EEOC within 90 days,*fn22 if a state remedy is available, it must be exhausted before the federal charge is filed.*fn23 To allow time for such exhaustion, in such states the charge need not be filed for 210 days; to enforce the exhaustion requirement and give the state agency an adequate opportunity to act first, the federal charge may not be filed until 60 days after the state procedure has been initiated (unless it terminates in less than 60 days).*fn24

Thus, time limitations include both an outer limit of 210 days from the occurrence*fn25 and a threshold exhaustion requirement, usually involving a waiting period of 60 days from the date of filing with the state agency.*fn26 Our problem is whether Moore filed his charge with the EEOC on a date which complied with the threshold requirement and also was within 210 days of the occurrence.

The question becomes complicated because we must consider when the statutory period ended as well as when it began, and the parties disagree on both points. The period ended on the date the charge was "filed" with the EEOC; the period began when the alleged unlawful employment practice "occurred" within the meaning of the statute. We therefore consider first, the filing date, and then, the occurrence date or dates.

A. The filing date.

The filing date of the charge is in dispute. Moore contends that it was on or before October 3, 1967; Sunbeam argues that it was December 21, 1967. A third possibility is October 19, 1967, the date when the formal charge form was submitted to the EEOC. We reject all these choices, however, and hold that December 19, 1967, should be treated as the filing date.

Moore's attempt to advance the date to October 3 is based on his inclusion of the EEOC as one of numerous agencies and persons to whom a copy of his open letter to the president of Sunbeam was mailed before he started to distribute it by hand on October 3, 1967. Even if the evidence definitely established a mailing to the EEOC prior to that date, we would not regard that type of communication as an adequate filing of the charge which is intended to initiate action by the EEOC. The letter was not addressed to the Commission, it did not request the EEOC to take any action, and if indeed a copy was received by the EEOC, it was not interpreted by that agency as a charge.*fn27 We think that interpretation by the agency was proper even under the appropriately liberal standards which should be applied to such a document, cf. Georgia Power Co. v. E.E.O.C., 412 F.2d 462, 466 (5th Cir. 1969). The copy of the letter addressed to Gwinn, which may have been mailed to the EEOC on or about October 3, should not be treated as a filed charge.

On October 19, 1967, Moore did submit a charge to the EEOC on an official form. He had not, however, previously filed a complaint with the Illinois Fair Employment Practices Commission.*fn28 In view of the requirement in § 706(b) that "no charge may be filed" with the EEOC before the expiration of 60 days after proceedings have been commenced with the appropriate state agency, his charge was referred to the state FEPC. On December 21, 1967, after the 60-day period had elapsed, Moore wrote to the EEOC requesting action on his charge;*fn29 it is that date which Sunbeam urges us to regard as the filing date.

Sunbeam's view apparently requires that if a charge is made to the EEOC which is referred to a state agency, then the charge must again be presented to the EEOC, either after the state agency has acted or 60 days after the charge was submitted to the state agency. Thus, Sunbeam would have us hold that the charge could not be considered filed until Moore wrote on December 21 asking the EEOC to resume jurisdiction. That position is now foreclosed by the Supreme Court's recent opinion in Love v. Pullman Co., 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679, 40 U.S.L.W. 4159 (January 17, 1972). In Love, the EEOC orally referred a charge to the state agency and automatically treated the charge as filed when the state agency declined to take action. The court wrote:

"The EEOC takes the position that these requirements [as to timeliness] were fulfilled by the procedure followed in this case, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. The Court of Appeals, on the other hand, regarded this procedure as a 'manipulation of the filing date,' not contemplated or permitted by the statute or by the EEOC regulations then in force.

"We hold that the filing procedure followed in this case fully complied with the intent of the Act, and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral. Further, we cannot agree with the respondent's claim that the EEOC may not properly hold a complaint in 'suspended animation,' automatically filing it upon termination of the state proceedings.

"We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of § 706(b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706(d), to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second 'filing' by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." 404 U.S. at 526, 40 U.S.L.W. at 4160-4161.

Thus, no second "filing" was required. Since the EEOC had received the charge, we treat it as automatically filed upon termination of the state proceedings or 60 days after initiation of the state proceedings, whichever is earlier.*fn30

Moore argues that his charge should be considered as filed on receipt, pursuant to an EEOC regulation so providing.*fn31 He argues this would be October 3. We have rejected that date, but must still consider whether Moore's argument can be accepted in order to set the date as October 19, the day the actual charge was received. The Supreme Court has, we think, also foreclosed this approach. In footnote 5 of its opinion in Love, the Court wrote:

"The Court of Appeals expressed concern that if EEOC could ignore the requirement of 29 CFR § 1601.11(b) (1971) that a charge is deemed filed when received, it could file any complaint whenever it chose, thereby nullifying the various statutory time requirements. But the statutory prohibition of § 706(b) against filing charges that have not been referred to a state or local authority necessarily creates an exception to the regulation requiring filing on receipt." 404 U.S. at 526 n. 5, 40 U.S.L.W. at 4160 n. 5.

Thus, the Court contemplated that a charge referred to a state agency need not be resubmitted, but nevertheless cannot be treated as "filed" until the 60-day period has expired or until the state has terminated its proceeding, whichever is earlier. Only then can the stated "purpose both of § 706(b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706(d), to ensure expedition in the filing and handling of those complaints"*fn32 be achieved.

Although not in effect at the time of Moore's charges, Moore argues that we should either apply a subsequent EEOC regulation or at least interpret the statute itself as having the same meaning. That regulation, in pertinent part, reads:

"In cases where the document is filed with the Commission more than 150 days following the alleged act of discrimination but less than 210 days therefrom, the case shall be deferred pursuant to procedures set forth above: Provided, however, That unless the Commission is earlier notified of the termination of the State or local proceeding, the Commission will consider the charge to be filed on the 209th day following the alleged discrimination and will commence processing the case. . . ." 29 C.F.R. § 1601.12(b)(v) (1971).

We do not accept that interpretation for three reasons. First, it appears contrary to the Supreme Court's interpretation of the statute in Love, particularly the Court's express recognition of the purpose of § 706(b). Second, it is in conflict with the plain meaning of the statute.*fn33 Third, it ignores the evidence of congressional intent provided by the statute's history.

The provision we are construing resulted from the so-called Dirksen-Mansfield compromise. The legislative history of that compromise indicates clearly that the states were intended to have "exclusive jurisdiction" for at least 60 days before the federal government could act,*fn34 and also that one who has followed state procedures must nevertheless file (or have a previously submitted charge automatically filed) with the EEOC within 210 days.*fn35

Under the EEOC's regulation, or under the statute if we were to interpret it as having the same meaning, a charge submitted to the EEOC 208 days after a violation occurred would be referred to the state but the next day would be treated as filed and EEOC processing would begin. The state would be denied its period of at least 60 days to attempt to settle the matter without federal intervention.*fn36

In order to satisfy the clearly stated purposes of both § 706(b) and § 706(d) we therefore hold that Moore's charge was "in suspended animation" for 60 days after it was referred to the state agency and should be treated as automatically filed with the EEOC on December 19, 1967.*fn37 The charge was therefore timely with respect to any unlawful practice which occurred after May 23, 1967, but not with respect to any which occurred earlier.

B. The occurrence dates.

In the charge filed with the EEOC, Moore listed August 7, 1967, as the most recent date on which discrimination occurred.*fn38 We may therefore confine our inquiry to the period between May 23, 1967 (the date determined by subtracting 210 days from the December 19, 1967, filing date) and August 7, 1967.

His charge, as well as the affidavit supporting it, was primarily directed at incidents which took place in October of 1966 and January of 1967, but also accused Sunbeam of "continuing" discrimination and harassment prior to August 7, 1967. We first consider whether the earlier incidents should be treated as having occurred at a later date, and then consider the alleged continuing violation.

1. Specific incidents.

Moore argues that the time in which he might file a charge based on the October 1966 and January 1967 incidents did not begin to run until after he had completed his efforts to reach a private settlement with his employer. In statutory terms, he contends that the incidents did not occur until his employer finally refused to correct the alleged injustices. For this argument Moore relies on Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970).

In Culpepper the court held that an employee's timely invocation of his contractual grievance remedies tolled the Title VII statute of limitations. Notwithstanding Sunbeam's contention that Culpepper does not give proper effect to the statutory language and therefore should not be followed in this circuit, we agree with the following statement by Judge Tuttle:

"This court has held many times that Title VII should receive a liberal construction while at all times bearing in mind that the central theme of Title VII is 'private settlement' as an effective end to employment discrimination.

"It would, therefore, be an improper reading of the purpose of Title VII if we were to construe the statute as did the district court to permit the short statute of limitations to penalize a common employee, who, at no time resting on his rights, attempts first in good faith to reach a private settlement without litigation in the elimination of what he believes to be an unfair, as well as an unlawful, practice. We, therefore, hold that the statute of limitations, which has been held to be a jurisdictional requirement, is tolled once an employee invokes his contractual grievance remedies in a constructive effort to seek a 'private settlement of his complaint.' Culpepper also sought to settle his complaint in 1963 through the grievance procedures. We do not think that Congress intended for a result which would require an employee, thoroughly familiar with the rules of the shop, to proceed solely with his Title VII remedies for fear that he will waive these remedies if he follows the rules of the shop or to do both simultaneously, thereby frustrating the grievance procedure." 421 F.2d at 891-892.

Under the reasoning of Culpepper, the statute of limitations was tolled when, pursuant to the terms of the collective bargaining agreement, Moore initiated a grievance based on the October 24, 1966, incident. Unlike the situation in Culpepper,*fn39 we must decide when the tolling period ended.

It is undisputed that the grievance proceedings contemplated by the union contract terminated on February 16, 1967, when Moore received Sunbeam's third step answer denying the grievance. Thereafter Moore continued his efforts to reach a private settlement by writing to the president of Sunbeam in February, by holding a further informal meeting in March at which he was advised that the president would not meet with him personally and that no further action would be taken on his grievance, and, indeed, by his letter to the president of Sunbeam in August which also made reference to his prior denial of a leadman assignment.

Moore argues that at least the first letter to the president and the informal meeting in March should continue to toll the statute. If his argument were valid, we think it might equally support a continuation of the tolling until August. We believe, however, that the reasoning of Culpepper applies only to the formal grievance procedures contemplated by the collective bargaining agreement. Under this reasoning, although the incident actually "occurred" on October 24, 1966, for limitations purposes the "occurrence" was not completed until Moore exhausted his promptly initiated contractual remedies. We therefore hold that, with respect to the October 24, 1966, incident, the statute began to run on February 16, 1967. Accordingly, we agree with the district court that insofar as the civil rights complaint is predicated on that incident, it is barred.*fn40

2. "Continuing" discrimination and harassment.

The district court also held that the claims relating to continuing harassment and discrimination were not covered by the charge filed with the EEOC and, therefore, could not be subject of Title VII litigation.

Neither the charge, concurrent affidavit, nor subsequent statement alleges any specific act of harassment and discrimination in the period between May 23, 1967, and August 7, 1967. The only allegations relating to this period were (1) a conclusory statement in the charge that the discrimination was "continuous" from January 11, 1967, to August 7, 1967; (2) a similar conclusory statement in the affidavit; (3) a statement in the affidavit that the August 7, 1967, transfer was requested because of "mental agony, and loss of wages brought on by these acts of discrimination"; and (4) a reference in the long chronology filed in March of 1968 to his October 24, 1967, "march" in protest of "unequal opportunities."

In context, the last mentioned allegation, numbered (4), cannot be fairly read as an allegation of racial discrimination. The first two allegations merely describe the continuing consequences of the earlier decision not to promote Moore. The failure to promote may be a "continuing" offense if it is followed by repeated promotions of others in preference to the complainant, but none of the documents before the EEOC specified any incidents of failure to promote after January 10, 1967. Cf. Cox v. United States Gypsum Co., 409 F.2d 289, 290-291 (7th Cir. 1969).*fn41

We come finally to the allegation numbered (3) above. Here Moore alleged that he requested a transfer on August 7, 1967, because of "mental agony, and loss of wages brought on by these acts of discrimination." We think that a fair reading of this statement is that Moore did claim that he was a victim of discriminatory conduct sometime before August 7, 1967. We find no evidentiary support for a conclusion that any act of discrimination did occur between May 23 and August 7. The absence of evidence was not, however, the basis for the order entered below, and it is not our function to consider evidentiary questions in the first instance, particularly when the record is as complex as this one.

We therefore hold that the district court has jurisdiction to determine whether, during the period between May 23, 1967, and August 7, 1967, Sunbeam was guilty of any conduct which gave rise to a Title VII claim by Moore.*fn42 We cannot find any basis for such a claim against the union in the charge and related documents and, therefore, affirm dismissal as to it.

IV.

One final contention requires discussion. Moore argues that he was denied effective assistance of counsel. Moore's court -appointed counsel effectively represented him at the taking of his deposition. However, after the motions for summary judgment were filed, but before he responded thereto, counsel asked leave to withdraw, apparently at Moore's request. He so stated in his motion, and Moore, although he had notice, did not appear to oppose withdrawal. Counsel on appeal argues that summary judgment might not have been granted had counsel continued to represent Moore. However, counsel on appeal has not demonstrated that any material could have been filed in opposition which would have significantly altered the record as it now stands on the § 301 counts. Furthermore, there is no constitutional or statutory right to appointed counsel for the § 301 claims; counsel was appointed under the discretionary authority of Title VII of the Civil Rights Act of 1964, § 706(e), 42 U.S.C. § 2000e-5(e). On the Civil Rights Act count, Moore will now get all the consideration which trial counsel could have obtained for him. Thus, there is no showing of prejudice sufficient to cause us to conclude that the trial court abused its discretion in permitting Moore's trial counsel to withdraw.

To recapitulate: Moore's petition to review the order of the Labor Board is denied. The summary judgment dismissing all claims asserted under § 301 of the Labor-Management Relations Act is affirmed. The order dismissing the claims asserted against Sunbeam and the union under the Civil Rights Act of 1964 is affirmed except insofar as the complaint contains allegations against Sunbeam relating to the period between May 23, 1967, and August 7, 1967. With respect to that portion of the complaint, the order of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.


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