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FRANSDEN v. BROTH. OF RY.

February 1, 1985

H. JACK FRANSDEN, PLAINTIFF,
v.
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge.

MEMORANDUM AND ORDER

Before the Court are Defendant Brotherhood of Railway, Airline and Steamship Clerk's (BRAC) Motion for Summary Judgment (Document No. 21) and Defendant Missouri Pacific Railroad Company's (MOPAC) Motion for Summary Judgment (Document No. 24). Plaintiff filed this action alleging that BRAC was guilty of unfair representation in negotiations with MOPAC resulting in a loss of his seniority rights and privileges and that MOPAC conspired with BRAC to deprive the plaintiff of his seniority rights. The main argument of both defendants' summary judgment motions is that plaintiff's cause of action is barred by the six-month statute of limitations set forth in Del Costello v. International Brotherhood of Teamsters, 461 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

Summary judgment is appropriate only where the record shows 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." Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). The Court must view the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the party opposing summary judgment. Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th Cir. 1984).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether summary judgment is proper. The Court must determine whether the non-moving party has established that there is a genuine issue as to that fact.

  To create a question of fact, an adverse party
  responding to a properly made and supported summary
  judgment motion must set forth specific facts showing
  that there is a genuine issue for trial. . . . A
  party may not rest on mere allegations or denials of
  his pleadings; similarly, a bare contention that an
  issue of fact exists is insufficient to raise a
  factual issue.

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, ___ U.S. ___, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Applying these principles to the issue at hand, the Court finds that there exists no issue of material fact and that the defendants are entitled to judgment as a matter of law. Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, gives an employee a cause of action against his employer for unfair labor practices. The employee also has a cause of action against his union for breach of the union's duty of fair representation. Both the union's duty and the employee's cause of action are "implied under the scheme of the National Labor Relations Act." Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). A similar duty and cause of action are implied under the Railway Labor Act. Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 204, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944); Ranieri v. United Transportation Union, 743 F.2d 598, 600 (7th Cir. 1984).

Initially, the Court notes that the plaintiff claims that MOPAC is liable to him as a party to BRAC's alleged duty of fair representation breach. The plaintiff does not bring a direct claim against MOPAC under § 301 of the LMRA, 29 U.S.C. § 185, as is usually the case in a "hybrid duty of fair representation/301 action." In the usual hybrid case, the § 301 claim could stand distinct from the duty of fair representation claim, but here the plaintiff cannot bring such a claim because § 301 does not apply to employers, such as MOPAC, subject to the Railway Labor Act. The claim here is that MOPAC is a party to BRAC's breach. Thus, if BRAC's claim is dismissed, the claim against MOPAC must also be dismissed. United Independent Flight Offices Inc., et al. v. United Airlines, Inc., et al., No. 83-3069, slip op. at 17 (7th Cir. Jan. 17, 1985). An employer is liable together with the union for the union's breach of its duty of fair representation, if as alleged here, it acted in collusion with the union. Id.

In Del Costello, the Supreme Court held that the six-month statute of limitations set forth in Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), governs breach of contract and/or breach of fair representation claims like the one present in this lawsuit. In Ranieri, the Seventh Circuit held, following Del Costello, that the six-month section 10(b) limit applied to a Railway Labor Act duty of fair representation claim by an employee against his union. 743 F.2d at 599. The Seventh Circuit has also applied this limitations period to a suit in which the employer is alleged to have colluded with the union in breaching the duty of fair representation. United Independent Flight Officers, Inc., et al. v. United Airlines, Inc., No. 83-2572, slip op. at 17 (7th Cir. Jan. 17, 1985.) The Seventh Circuit has applied Del Costello retroactively. Storck v. International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir. 1983). The six-month limitations period begins running when the claimant "discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation]." Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984).

In the instant case, the plaintiff does not contest the fact that he discovered or otherwise became aware of the acts constituting the alleged violations on April 16, 1982, or shortly thereafter. Rather, he alleges that his pursuance of intra-union remedies tolled the six-month statute of limitations. The defendant BRAC counters by arguing that since the plaintiff is not required to exhaust intra-union remedies that are futile, the statute of limitations is not tolled by the fact that the plaintiff did pursue them.

With regard to the defendants' argument, the Supreme Court has held that a railroad employee's suit against a union for breach of its duty of fair representation is not subject to the ordinary requirement that administrative remedies be exhausted before resorting to the courts. Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970). One commentary has implicitly stated that this rule applies to the intra-union remedies a railroad employee might have at his disposal. 23 Fed.Proc., L.Ed. § 52:2016. Therefore, accepting this as true, the defendants' argument would certainly have merit since if there exists no requirement of exhaustion of even effective intra-union remedies, tolling of the limitations period would not be necessary or proper. However, this Court is not convinced that the Supreme Court in Czosek intended to remove the exhaustion of intra-union remedies requirement since that precise issue was not before it. Further, the Court sees no reason why the Supreme Court would require exhaustion of effective intra-union remedies in other labor contexts and not in the railroad context. Therefore, this Court will proceed on the premise that exhaustion of intra-union remedies by a railroad employee is governed by the same principles set forth by the Supreme Court in other labor cases.

The Supreme Court has held that prior to filing suit a grievant need not exhaust internal union remedies unless the exhaustion would afford "complete relief" to the grievant. Clayton v. UAW, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Implicit in the defendants' argument is that if a plaintiff need not exhaust internal union remedies because they would not afford him complete relief, his attempt to exhaust them should not toll the running of the statute of limitations. In other words, if the plaintiff reaps the benefit from the no exhaustion rule, he must also pay the costs.

Resolution of this dispute requires the Court to define the interrelationship of two distinct legal doctrines. The purpose of exhaustion doctrines traditionally has been to encourage private rather than judicial resolution of disputes. On the other hand, the purpose behind the six-month statute of limitations is a rapid resolution of labor disputes. Del Costello, 103 S.Ct. at 2292.

However, in Clayton, the Supreme Court decided that exhaustion of futile internal union remedies would not promote the ...


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