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GARDNER v. ILLINOIS BELL TEL. CO.

September 30, 1982

DONNA GARDNER, PLAINTIFF,
v.
ILLINOIS BELL TELEPHONE COMPANY, COMMUNICATIONS WORKERS OF AMERICA — DISTRICT 5, AFL-CIO, AND W.C. BUTTON IN HIS INDIVIDUAL CAPACITY AS VICE-PRESIDENT OF THE COMMUNICATIONS WORKERS OF AMERICA — DISTRICT 5, AFL-CIO, DEFENDANTS.



The opinion of the court was delivered by: Mihm, District Judge.

MEMORANDUM OPINION

FACTS:

For purposes of this motion to dismiss, the parties take these allegations as true. Donna Gardner, an employee of Illinois Bell and a member of the Communications Workers of America (hereinafter Union), was fired from Bell on February 14, 1979. She attempted to file a grievance to challenge the discharge and took all steps necessary within 30 days. However, the Union failed to investigate the incident or institute any grievance procedure. On April 29, 1982, Gardner filed this lawsuit suing Bell for wrongful discharge (Count I); suing the Union for breach of its duty of fair representation (Count II); and suing W.C. Button, Union Vice-President, in his individual capacity (Count III). Gardner asks for reinstatement and $300,000 damages.

Illinois Bell answered the complaint and raised the statute of limitations as an affirmative defense. Gardner moved to strike this affirmative defense. The CWA also filed a motion to dismiss on the grounds that the suit is time barred by the statute of limitations. Button moved for the dismissal of Count III on the ground that Union officials are not individually liable for the Union's breach of its duty of fair representation.

In addition, Illinois Bell has filed a motion for costs and expenses incurred in opposing Gardner's motion to strike the affirmative defense on the ground that such motion to strike was frivolous and groundless. In turn, Gardner has filed a petition for costs incurred in opposing Bell's motion for costs.

DECISION AND ORDER:

§ 301 of the LMRA permits a union employee to sue his employer for wrongful discharge. However, where the union and the employer have agreed to submit disputes to a grievance/arbitration process, the employee must first show that the union has breached its duty of fair representation. See, Hines v. Anchor Motor Freight Co., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1970). This duty of fair representation is derived from § 301.

Congress did not specify which statute of limitations was to govern suits under § 301. Therefore, courts must decide which statute of limitations should govern as a matter of federal law, "by reference to the appropriate state statute of limitations." Chauffeurs Local 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1026 (7th Cir. 1980); UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966).

There is a recent Supreme Court case on this question. In United Parcel, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the Supreme Court held that a suit by an employee against an employer under § 301 can be most closely analogized to an action to vacate an arbitration award because the employee must first establish a flaw in the binding grievance procedure before being entitled to reach the merits of his contract claim. Therefore, the Supreme Court applied the state statute of limitations for vacating an arbitration award. The Seventh Circuit followed Mitchell in Davidson v. Roadway Express, Inc., 650 F.2d 902 (7th Cir. 1981), by applying the 90-day Indiana statute for vacating an arbitration award. It is therefore clear that the cases support the application of the 90-day statute of limitations in this case.

Illinois' arbitration act provides a 90 day period in which an action must be filed to vacate an arbitration award. Ill.Ann.Stat. Ch. 10, § 112 (Smith-Hurd 1976). This 90 day statute of limitation applies even though § 112(e) states:

  "(e) Nothing in this Section or any other Section
  of this Act shall apply to the vacating,
  modifying, or correcting of any award entered as
  a result of an arbitration agreement which is
  part of or pursuant to a collective bargaining
  agreement; and the grounds for vacating,
  modifying, or correcting such an award shall be
  those which existed prior to the enactment of
  this Act."
  This conclusion rests on the Supreme Court's directive in Mitchell that the Federal Court should choose the state statute most closely analogous to a statute of limitation for the vacation of an arbitration award.

Plaintiff argues that the 90-day statute of limitation contained in § 112 is inapplicable because there was never any action taken by the Union to pursue her grievance rights. In response to this objection, this Court agrees with and adopts the reasoning in Bigbie v. Local 142, 530 F. Supp. 402, 405 (1981):

  "[I]t is quite irrelevant at what point in the
  contractual grievance procedure Union's breach of
  its duty of fair representation has occurred.
  Whether Union has failed to file any grievance at
  all (as alleged here) or has failed to represent
  the employee fairly before the grievance
  committee (as in Davidson) or has failed to appeal
  from an adverse arbitration decision (as in
  Mitchell) has no significance in relation to the
  substance of a Section 301 claim: whether Union has
  breached its duty of fair representation. 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.
  What is significant in each situation is that the
  Mitchell Court chose to analogize the action to one
  vacating an arbitration award, rather than applying
  the ...

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