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Clift v. International Union

decided*fn*: May 6, 1987.

DONALD JOSEPH CLIFT, ET AL., PLAINTIFFS-APPELLANTS
v.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 83 C 1882-William E. Steckler, Judge.

Before Bauer, Chief Judge, Cummings and Manion, Circuit Judges.

Per Curiam. Four named plaintiffs brought a class action against their union and employer alleging violations of section 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 185, and sections 101 and 102 of the Labor Management Reporting and Disclosure Act, 1959 (LMRDA), 29 U.S.C. §§ 411 & 412. In a subsequent motion, they sought leave to add a claim that they were denied due process of law in violation of the Fifth Amendment. On defendants' motions for summary judgment, the district court held that the statutory claims were time barred. The court denied leave to amend on the ground that no government action was involved. The court did not certify the class action because it found that question moot since all the plaintiffs' claims were being dismissed. The district court entered judgment for the defendants and plaintiffs appeal. For the reasons below, we affirm.

I

Both the plaintiffs and the defendants moved for summary judgment. In addition to numerous affidavits, the parties provided transcripts of testimony from a two-day hearing on a preliminary injunction. For our purposes, though, a brief description of the facts will suffice. Where necessary, additional facts will be brought out in our discussion of the applicable law.

Plaintiffs are employed by International Harvester Company (Harvester) at its engine assembly plant in Indianapolis. They are members of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and Local 98 of the UAW.*fn1 In late 1981 and early 1982, the UAW and Harvester entered into early negotiations for possible concessions of a 1980 collective bargaining agreement that was not to expire until October 1982. The reason for the early negotiations was Harvester's precarious financial condition. A tentative agreement was reached at the end of April 1982. At the time, plaintiffs, and the class of about 350 employees they sought to represent, were on layoff from the Indianapolis plant, most for more than six months. The Local was informed that a tentative agreement was possible and notices were distributed at the plant concerning a meeting on May 2 regarding the contract negotiations. As it turned out, that was a meeting to explain and vote on the tentative contract. The Local did not consider the laid-off employees to be members in good standing entitled to vote on the contract (an interpretation contested by plaintiffs), so no special notices were sent to the laid-off employees, although they were not excluded from attending. The local media was told of the meeting, but advance reporting of the meeting by the media was apparently minimal if at all.

The new contract was approved by the Local by a vote of 235 to 129. The contract was approved nationwide by a vote of 7086 to 3949 and went into effect on May 3, 1982. The only provision relevant to the present case is the creation of a Master Recall List. The new contract provided for the keeping of a national list, by seniority, of eligible persons on layoff. If a particular Harvester operation had no local employees on layoff, those on the Master List were eligible to fill any job openings. Once hired at a new operation, that person took his seniority from his prior bargaining unit with him and thus could have higher seniority than persons who had worked at that particular operation for a longer period of time. The parties disagree on whether or not this new provision was significantly different from the prior contract and on whether the revision could be made nationally in contrast to the 1980 contract which provided for local arrangements on individual plant closings.

At the May 2 ratification meeting, the Local members present were told about the provision for a Master Recall List, but were advised that it would probably not affect them because all the laid-off Local employees had first to be recalled and that did not appear likely. As it turned out, though, all the laid-off employees at the Indianapolis plant were subsequently recalled. On March 7, 1983, the first of several hundred transferees began work at the Indianapolis plant and were placed on the seniority list above some of the employees who had worked at the Indianapolis plant prior to March 7.

On September 6, 1983, more than seventeen months after the contract ratification but just under six months after the first transferee arrived, plaintiffs filed a complaint in the district court. They complained that the Master Recall provision had been improperly ratified because of insufficient notice to laid-off employees, failure to allow the laid-off employees to vote, the secrecy of the negotiations, and the alleged misrepresentation that Master Recall would not affect employees at the Indianapolis plant. The claims were pursuant to the LMRA and LMRDA. After plaintiffs' preliminary injunction was denied, both sides moved for summary judgment. The district court held that a six-month statute of limitations applied and that the cause of action accrued in May 1982 when the new contract was ratified. Plaintiffs' claims were therefore time-barred and it was unnecessary for the court to consider other grounds for dismissal. The court also denied leave to add the Fifth Amendment due process claim because there was no government action that would bring that Amendment into play. The district court found the question of class certification to be moot. Judgment was entered for the defendants and plaintiffs appeal.

II.

We first consider plaintiffs' "argument" that the district court has failed to rule on the question of certification of this action as a class action. Plaintiffs' entire "argument" on this issue consists of the following:

III. THE DISTRICT COURT ERRED IN NOT GRANTING PLAINTIFFS' MOTION THAT A CLASS ACTION SUIT BE MAINTAINED.

The Plaintiffs originally filed this action as a class action on September 5, 1983. Plaintiffs subsequently filed a "Motion For Determination By Order That a Class Action be Maintained" on December 5, 1983. In the year and nine months that has passed since its filing, the district court has failed to rule on this Motion.

Plaintiffs' Brief at 39.

This does not qualify as an argument; ordinarily, we would not consider the issue at all. See Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir. 1986), and the cases cited therein. See also Fed. R. App. P. 28(a)(4); Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit 41-42 (1984 ed.). But we cannot ignore this issue; if plaintiffs accurately characterized the facts, we might have no jurisdiction over the appeal. Compare Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1034 n.1 (7th Cir. 1986); Glidden v. Chromalloy American Corp., 808 F.2d 621 (7th Cir. 1986). We must raise jurisdictional issues sua sponte, even if not raised by the parties. See Arch Mineral Corp. v. Director, OWCP, 798 F.2d 215, 217 (7th Cir. ...


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