United States District Court, S.D. Illinois
June 2, 2005.
DAVID R. PANZIER, II, Plaintiff,
THE DIAL CORPORATION and LOCAL 618, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Defendants.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM and ORDER
Now before the Court is Defendant The Dial Corporation's
(hereinafter "Dial") motion for summary judgment (Doc. 25) and
memorandum in support (Doc. 26) and Defendant Local 618,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America's (hereinafter "Local 618") motion for
summary judgment (Doc. 27) and memorandum in support (Doc. 28) as
to Plaintiff David R. Panzier, II's two-count second amended
complaint under Section 301 of the Labor Management Relations
Act, 29 U.S.C. 185 (Doc. 18). In Count One, Panzier alleges
Dial breached its collective bargaining agreement with Local 618
when it discharged Panzier without proper cause. In Count Two,
Panzier alleges Local 618 breached its duty to fairly represent
Panzier when it allegedly acquiesced or unreasonably permitted
Dial to terminate Panzier's employment without just or proper
cause and then failed to take his case to arbitration without any
good faith basis. Panzier responded jointly to the motions for summary judgment
at Doc. 29. Dial replied at Doc. 31 and Local 618 replied at Doc.
30. This matter being fully briefed, the Court begins its
analysis with a brief recitation of the factual background and
Factual Background and Procedural History
Dial operates a plant in St. Louis, Missouri where it
manufactures dry detergent, liquid detergent and related products
during three daily shifts. Panzier began working for Dial on
September 26, 1988, and was employed by Dial for approximately 15
years until his employment was terminated on May 15, 2003,
retroactively effective May 9, 2003. At the time of his
termination, Panzier worked as a Technician III Line Leader
directing a crew of employees.
Local 618 is the labor union that represents the bargaining
unit employees employed by Dial at its St. Louis plant. The
bargaining unit employees's employment, which included Panzier,
is governed by a collective bargaining agreement (hereinafter
"CBA") negotiated by Dial and Local 618. Article 20 of the CBA,
the "Management Rights" clause, provides in part:
All management functions, rights, powers and
authority which the Company has not specifically and
clearly limited or abridged by this Agreement are
recognized by the Union as being retained solely and
exclusively by the Company, including, but not
limited to, and by way of example only: . . . the
direction of the working forces including but not
limited to the right to hire, promote, transfer,
suspend, demote, discipline or discharge for proper
cause. . . .
Doc. 26, Exh. E. Article 7 of the CBA sets forth the three steps
of the grievance procedure. The first step provides that the
employee should discuss his grievance to his supervisor. Step two
provides that in the event a satisfactory conclusion cannot be
reached in the first step, the employee should provide a written
grievance to his supervisor. Within five days of Dial's receipt
of the written grievance, a meeting will be held between the
employee and a member of the grievance committee or a Local 618 representative and a representative of
Dial, and Dial will render its decision in writing within five
working days after the meeting. The last step, step three,
provides that in the event a satisfactory conclusion is not
reached in step two, Local 618 may appeal the second step answer
to Dial within ten calendar days and a meeting would then be held
within thirty calendar days from the date of the third step
appeal to resolve the grievance. Dial then will respond to Local
618 in writing of its decision within fourteen calendar days.
Thereafter, if a satisfactory settlement still has not been
reached, the grievance may be referred to arbitration by Local
618 if it gives Dial written notice of its intent to do so within
thirty calendar days from its answer in step three.
As well, Dial has "Plant and Distribution Center Rules"
(hereinafter "Plant Rules") that apply to the bargaining unit
employees. In Article 27 of the CBA, Dial and Local 618 agreed
that Dial could implement such rules concerning certain standards
of conduct and what constitutes proper cause for termination of
The Plant Rules separate infractions into three categories of
increasing severity: general, major and serious. The Plant Rules
provide that an employee's accumulation of two written notices
for general or major infractions in a twelve-month period will
result in suspension, while accumulation of three warning notices
in a twelve-month period for general or major infractions "will
result in permanent separation" of that employee. Specifically,
the Plant Rules state:
Infractions of these rules will be dealt with by
using the written warning notice concept, starting
with the first written warning notice. Letters of
reprimand and written warning notices can be issued
concurrently, depending upon the seriousness of the
Warning notices are cumulative, regardless of the
nature of the infraction, and will remain in effect
for twelve months. Letters of reprimand remain in
effect for two years. A second written warning notice will result in a disciplinary suspension.
Should an employee's conduct warrant the issuance of
a third written warning, as a progression on the
first and second notices, the employee will be
permanently separated from employment.
Doc. 28, Exh. HH.
During his employment with Dial, Panzier was involved in a
couple of infractions. On August 8, 2002. Panzier was counseled
for violating Plant Rule II-T (morally or socially unacceptable
behavior) on July 7, 2002. On July 7, 2002, in response to a
manager's request to obtain a product sample, Panzier apparently
became angry and threw his cup from which he was drinking,
shouted at management, and started slamming drawers and lab
equipment. In that counseling, Dial specifically informed Panzier
that further inappropriate conduct would subject him to further
discipline up to and including termination.
Panzier was also counseled on August 8, 2002 for violating
Plant Rule II-U (failure to report or being late for scheduled or
assigned overtime without proper substantiation) on August 3 and
4, 2002 when Panzier failed to report for overtime. Panzier was
written up, and Panzier and Local 618 grieved the write up as
Panzier claimed he was attending to a relative in the hospital.
After the fact, Panzier provided a doctor's note indicating that
his brother-in-law had been hospitalized. Employee Relations
Manager Patricia Canada voided the counseling and explained to
Panzier what would constitute proper documentation to prevent the
issue of a counseling or discipline for violating Plant Rule II-U
in the future.
Thereafter, Panzier accumulated three warning notices within a
twelve-month period that resulted in his employment being
terminated in accordance with the CBA and Plant Rules. Panzier
received the first written warning on October 3, 2002 for
violating Plant Rule II-R (a major rule prohibiting smoking,
eating or chewing snuff or tobacco). Panzier was found smoking a cigarette in the control room on September 23, 2002. Panzier and
Local 618 filed a grievance over the discipline, which Dial
denied. Local 610 pursued the grievance through the third step,
however it did not arbitrate the grievance as Panzier did not ask
that it be arbitrated.
The next written warning was about a month later on November 8,
2002, when Panzier received a written warning for violating Plant
Rule II-D (a major rule concerning changing clothes before
punching out at the end of the shift without authorization).
Panzier reported late that day for mandatory anti-harassment
training. Panzier clocked out and went to shower and change his
clothes before attending the meeting. Panzier responded that he
did not know of the meeting. Panzier and Local 618 filed a
grievance over the discipline and pursued the grievance to the
third step, but Dial ultimately denied the grievance. Local 618
did not arbitrate the grievance as Panzier failed to notify Local
618 within thirty days after the third step meeting to express
interest in pursuing the grievance to arbitration. Panzier did
not protest Dial's denial of the grievance or otherwise protest
Local 618's decision not to arbitrate the grievance.
The third written warning occurred several months later as a
result of three incidents. On April 24, 2003, Panzier was
scheduled to report to work for overtime at 4:00 a.m. and did not
report until 5:35 a.m. The next day, April 25, 2003, Panzier was
again scheduled to work for overtime at 4:00 a.m. and did not
report until 7:11 a.m. Dial determined that each instance was a
violation of Plant Rule II-U (a major rule for being late for
scheduled overtime without proper substantiation). However,
Panzier states he had car trouble on both days. On April 24, he
states his car's battery died. Then on April 25, his car's
serpentine belt snapped and he had to wait for his wife to return
home so he could use her car. Panzier took the car in for repair
on May 4, 2003, at the end of his work week. Then on May 6, 2003, Panzier left the plant without being
relieved of duty and without the approval of his manager. Dial
employees are not allowed to end their shift until their relief
has reported for work or until otherwise authorized. That day,
five minutes prior to the end of his shift, Panzier asked his
supervisor, Tim Jensen, if his relief, Angel Jennings, had
reported for duty, and was told she had not. Later, Panzier
thought he heard Jennings' voice while he was in the restroom.
After exiting the restroom, Panzier asked Jensen if Jennings had
called out and Jensen said she had not. Panzier then told Jensen
he was leaving, and Jensen said that was fine. However, Panzier's
replacement did not arrive until 5:02 p.m. that day, instead of
4:00 p.m., and did not call off work. Dial took the events of
April 24, April 25 and May 6 and included them all in a third
Then on May 7 and 9, 2003, Dial, Panzier and Local 618 met to
discuss the April 24, 2003, April 25, 2003 and May 6, 2003
incidents. During the May 7, 2002 meeting, Panzier claimed the
tardiness on April 24 and 25 were the result of car problems. On
May 5, 2003, Panzier had submitted receipts for a car battery and
an engine belt. However, Dial rejected the receipts as proper
documentation as the receipts were not dated for the date on
which Panzier missed work. Panzier alleges it was impossible for
him to get his car serviced that day as he was working from 5:35
a.m. until 4:00 p.m. on April 24, and was scheduled to be back at
work at 4:00 a.m. on April 25. Additionally, Panzier and his wife
were in bankruptcy and under financial stress and Panzier states
he need to wait until he received his paycheck the following
Thursday to repair his vehicles, which he did that next Saturday.
Nonetheless, Dial chose to terminate Panzier.
Then on May 14, 2003, Panzier, through the Local 618, grieved
his suspension and Chief Shop Steward, Cindy Keys, signed the
grievance. On May 15, 2003, Panzier was formally discharged, and Panzier grieved his discharge through Local 618.
Again, Keys signed the grievance. On May 22, 2003, Local 618 and
Dial conducted a combined second and third step grievance meeting
pursuant to Article 7 of the CBA regarding Panzier's termination
grievance. At the meeting were Panzier, Marvin Kropp, Business
Representative and Recording Secretary for Local 618, Keys,
Canada, and Mary Hoffman, Human Resources Manager of Dial.
On May 29, 2003, Dial informed Local 618 that Panzier's
termination grievance was denied. In accord with Article 7,
Section 4 of the CBA, Local 618 had thirty days from Dial's May
29, 2003 denial of Panzier's grievances to notify Dial of its
intent to arbitrate. Local 618 decided not to proceed to
arbitration on Panzier's termination grievance and informed
Panzier of its decision in a letter dated June 30, 2003. As Local
618 did not notify Dial of its intent to arbitrate, Dial
considered this matter closed on June 28, 2003, once the thirty
days had passed.
On July 15, 2003, Panzier and his wife, Patty Panzier, faxed a
letter to Kropp requesting that Local 618 arrange another meeting
with Dial regarding Panzier's termination. Panzier and his wife
asserted that Panzier has an alcohol problem and did so at the
time of his termination, which Kropp failed to raise during the
May 22 meeting. After receiving the facsimile, Kropp sent a
letter on July 17 to Tom Delaney, Dial's Director of Human
Resources, requesting an additional meeting regarding Panzier's
discharge. Kropp then sent a letter to Panzier advising that an
additional meeting had been requested, but alerted Panzier that
Dial was not required to agree to meet with them. Kropp further
explained that if Panzier had an alcohol problem, he could have
used Dial's Employee Assistance Program prior to his termination.
On July 21, 2003, Panzier's wife also faxed a handwritten
letter to Delaney, who provided a copy to Hoffman. On July 25,
2003, Dial sent a written response to Local 618, stating Dial did not want to meet as Local 618 had been made of aware of
Dial's decision to terminate Panzier's employment and choose not
to arbitrate the matter, thus Dial considered the matter closed.
Kropp informed Panzier by letter of Dial's decision not to meet.
Panzier then filed an unfair labor practice charge against
Local 618 with Region 14 of the National Labor Relations Board
(hereinafter "NLRB") on July 22, 2003. Panzier alleged that Local
618 violated the National Labor Relations Act for refusing to
arbitrate Panzier's discharge grievance and for allegedly
perfunctorily processing his discharge grievance. On September
10, 2003, Field Attorney John P. Hasman of Region 14 of the NLRB
informed Panzier that he was recommending that his unfair labor
practice charge against Local 618 be dismissed, and it was
dismissed on September 11, 2003. Panzier appealed the decision
and the appeal was denied on January 14, 2004.
Panzier filed his original complaint against Defendants on
December 29, 2003 (Doc. 1), amending his complaint on February 4,
2004 (Doc. 2), and later filing a second amended two-count
complaint on July 22, 2004 (Doc. 18). In Count One of the second
amended complaint, Panzier alleges Dial breached its collective
bargaining agreement with the Union when it allegedly discharged
Panzier without proper cause. In Count Two, Panzier alleges Local
618 breached its duty to fairly represent Panzier when it
allegedly acquiesced or unreasonably permitted Dial to terminate
his employment without just or proper cause and then failed to
take his case to arbitration without any good faith basis.
Standard Governing Summary Judgment
Summary judgment is proper if the pleadings, depositions,
interrogatory answers, admissions, and affidavits reveal that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Vukadinovich v. Board of School Trustees of North Newton School
Corp., 278 F.3d 693, 698 (7th Cir. 2002). The Court is to view
the record "in the light most favorable to the non-moving party."
Dyrek v. Garvey, 334 F.3d 590 (7th Cir 2003), citing
FEDERAL RULE OF CIVIL PROCEDURE 56(c).
The mere existence of an alleged factual dispute is not
sufficient to defeat a summary judgment motion. Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v.
Franklin School District, 293 F.3d 989, 996 (7th Cir. 2002).
Rather, to successfully oppose summary judgment, the nonmovant
must present definite, competent evidence in rebuttal.
Salvadori, 293 F.3d at 996, citing Vukadinovich,
278 F.3d at 699.
Panzier has filed a hybrid section 301/fair representation suit
claiming that Dial breached the collective bargaining agreement
and that Local 618 breached the duty of fair representation it
owes to its members. See Reed v. United Transp. Union,
488 U.S. 319, 328 (1989); McLeod v. Arrow Marine Transp., Inc.,
258 F.3d 608, 612-13 (7th Cir. 2001). In order for a plaintiff
to prevail in such an action, he must have a meritorious claim
against both the union and the employer; the claims are
interlocking in the sense that neither is viable if the other
fails. Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238,
1241 (7th Cir. 1997). The Court will address Local 618 and
Dial's arguments in turn.
1. Whether Local 618 breached its duty of fair representation
A union breaches the duty of fair representation only if its
actions are arbitrary, discriminatory, or in bad faith. Vaca v.
Sipes, 386 U.S. 171, 190 (1967). Each of these possibilities
must be considered separately in determining whether or not a
breach has been established. See Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293,
1302 (7th Cir. 1992), citing Air Line Pilots Ass'n, Int'l v.
O'Neill, 499 U.S. 65 (1991); see also, e.g., Crider,
130 F.3d at 1243.
To be "arbitrary", a union's conduct toward its members must be
"so far outside a wide range of reasonableness that it is wholly
irrational or arbitrary." Air Line Pilots Ass'n,
499 U.S. at 78. The United States Supreme Court has emphasized that the
arbitrary prong of the analysis is very deferential and has held
that "a union's actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union's actions,
the union's behavior is so far outside a `wide range of
reasonableness,' as to be irrational." Air Line Pilots Ass'n,
499 U.S. at 67. Applying this standard, a court "will not
substitute [its] judgment for that of the union, even if, with
the benefit of hindsight, it appears that the union could have
made a better call." McKelvin, 124 F.3d at 867. This wide
range of deference is warranted because Congress did not intend
for courts to interfere with the decisions of the employee's
chosen bargaining representative. Id. Therefore, "so long as a
colorable argument could be made at the time of the union's
decision to drop its support that the grievance is meritless, the
decision cannot be regarded as arbitrary." Id. at 867-68.
In this case, a rational jury simply could not find that the
Union failed this test, as there is no evidence of any conduct
that even approaches being outside a "wide range of
reasonableness." Kropp, who has been employed with Local 618 for
twenty years, stated that the decision was made not to arbitrate
Panzier's claim as Local 618 did not think they could win the
arbitration. See Doc. 28, Exh. 3, p. 18. Kropp stated that when
deciding whether to arbitrate, he initially looked at all the
facts surrounding Panzier's claim, and discussed them with his
boss, John Guerra, the secretary/treasurer of Local 618. The two
discussed Panzier's claims for a couple of hours over a couple of
days. Both agreed that they did not believe they would win if
they arbitrated Panzier's grievance as he fell into the progressive discipline
and Panzier had received three writeups within a twelve-month
period. Panzier himself admits that he had received three
write-ups within a twelve-month period, subjecting him to
termination. Such deliberation by Kropp and Guerra about whether
or not to arbitrate Panzier's claim and the resulting decision
not to arbitrate Panzier's claim as he had three write-ups on his
record within a twelve-month period, is not so far outside a wide
range of reasonableness so as to find that Local 618 acted
In support of his argument that Local 618 acted arbitrarily,
Panzier states that a reasonable arbitrator would have overturned
the November 8, 2002 write up because Panzier did not change his
clothes before punching out, he only changed clothes after
punching out. However, Local 618 would not be able to attack the
merits of the November 8, 2002 write-up as the time to do so had
already passed. As well, Panzier himself never asked that Local
618 arbitrate that grievance when he had the option to do so. As
a result, that write-up constitutes one strike against him in the
progressive discipline system.
Panzier further argues that Local 618's decision not to
arbitrate Plaintiff's termination was arbitrary because it
arbitrated other cases that Panzier contends were more egregious
than Panzier's purported misconduct. However, the Court notes
that Panzier cites to no caselaw in support of this argument. How
a union treats other grievances is relevant only as to
substantively similar grievances. Konen v. Int'l Brotherhood of
Teamsters, Local 200, 255 F.3d 402, 407 (7th Cir. 2001).
Therefore, if Local 618 treats grievances that are substantively
similar to Panzier's grievance, differently, than that would be
relevant to this Court's analysis as to whether Local 618 acted
Panzier puts forth the arbitrations of Robert Watson, Brant
Boyd, James Silas, and Corky Luedman. However, the record is devoid of any evidence that
these other grievances were substantively similar to Panzier's
grievance. Watson, Luedman and Silas were all terminated for one
time events, not progressive events like Panzier. And while Boyd
was discharged for accumulating three warning notices within a
twelve-month period, Boyd's grievance was taken to arbitration as
Local 618 was challenging whether Boyd had actually received
three warning notices in a twelve-month period. See Doc. 28,
Exh. 4. Boyd's first warning notice used in his twelve-month
calculation was issued on June 26, 2000 for an attendance
violation. Boyd then entered into a "last chance" agreement for
his attendance problems on February 2, 2001. He later received
warning notices on April 9, 2001 and on May 23, 2001. Local 618
contended that on May 23, 2001, Boyd should have only been at the
second warning stage with a three-day disciplinary suspension as
the date Boyd entered into the last chance agreement should not
have been counted against Boyd, but the date of the warning
itself in that matter, June 26, 2000 is what counts. This is
unlike Panzier's situation as he admits to getting three warning
notices in a twelve-month period.
As to whether Local 618's conduct was discriminatory and in bad
faith, while the two must be analyzed separately, the analyses
look to the subjective motivation of the Union officials. Trnka
v. Local Union No. 688, UAW, 30 F.3d 60, 63 (7th Cir. 1994).
There needs to be proof that the union acted (or failed to act)
due to an improper motive. E.g., Crider, 130 F.3d at 1243;
Trnka, 30 F.3d at 63; Ooley, 961 F.2d at 1304.
Panzier first argues that Local 618 acted in bad faith in
choosing not to arbitrate his grievance because Panzier was
affiliated with and participated in a "team concept" program
known as the OE program that Local 618 allegedly did not like.
The only information the Court can glean from the record
regarding the OE program is that it was a program designed to get
union and Dial management employees to work together. Doc. 26, Exh. B, p.
169-70. Apparently the program was implemented in phases sometime
in 2001 to 2002, but was not in effect in 2003.
The record is completely devoid of any evidence of Local 618's
bad faith towards Panzier because of his involvement with the OE
program. Moreover, the record before the Court contains barely
any information regarding the program. For instance, the Court is
unaware of when the program started and ended, the exact periods
of time Panzier was involved in the program, Panzier's role in
the program, or even how the program worked. The only evidence
Panzier puts forth regarding the OE program is Kropp's deposition
testimony that Local 618 did not like the program as it "pitted a
lot of members against each other." Doc. 28, Exh. 3, p. 29-30.
However, Kropp further testified that he was not sure whether
Panzier was involved in the program, only that he "was probably
like a group of people out there that was either on it/off it at
different times." Id. This evidence is far short of
demonstrating bad faith or that Local 618's conduct was
discriminatory towards Panzier. In fact, Panzier himself
testified that OE program was not even in existence when he was
discharged. Doc. 28, Exh. the NLRB found that Panzier's conduct
with OE "was remote in time to [Panzier's] discharge and there
was no evidence of any animus towards [Panzier] because of [his]
involvement." Doc. 30, p. 4.
Further, Panzier again argues that the ease any arbitrator
would have in overturning his November 8, 2002 write-up and Local
618's unwillingness to arbitrate his grievance demonstrates Local
618's bad faith. However, this does not in anyway infer a bad
motive on the part of Local 618, especially considering that
Panzier himself did not ask Local 618 to arbitrate that specific
write-up when he had the chance.
Panzier also argues again that Local 618's decision to
arbitrate other grievances that were more egregious than Panzier's purported misconduct is
evidence of Local 618's discrimination and bad faith towards
Panzier. Yet as stated previously, the record is devoid of any
evidence that these other grievances were substantively similar
to Panzier's grievance so as to be relevant evidence of
discrimination or bad faith.
Moreover, the Court notes that Local 618 always pursued all the
grievances filed by Panzier through the system. As to Panzier's
discharge grievance, Chief Shop Steward Cynthia Keys filed the
grievance protesting Panzier's discharge. Then Local 618 and Dial
conducted a combined second and third step grievance meeting
regarding Panzier's discharge grievance pursuant to Article 7 of
the CBA. Panzier was present at the meeting and represented by
Kropp and Keys. Panzier was given the opportunity to present
evidence, and Panzier himself has stated that at the meeting he
"stressed that [he] had been a valuable employee for 15 years,
had done a lot for the company including safety inspections and
run orientation meetings for new employees [and that] Marvin
Kropp also made these points to the company representatives in an
attempt to reduce my discipline to a suspension." Doc. 28, p. 9.
As well, Local 618 was successful in a past grievance of
Panizer's. In October 2002, Local 618 pursued Panzier's grievance
regarding his warning notice for being absent in August 2002, and
Dial withdrew the written warning. As the United States Court of
Appeals for the Seventh Circuit has stated, "the union's
willingness to pursue [plaintiffs] meritorious claim tends to
show that it bore no ill will toward him [when it dropped his
meritless claim]." Souter v. Int'l Union, 993 F.2d 595, 599
(7th Cir. 1993). Further, the Court notes that Local 618
continued to represent Panzier even after notifying him that they
were not arbitrating his discharge grievance. Panzier and his
wife sent a letter to Kropp on July 15 demanding that Kropp
request an additional meeting about the discharge grievance with Dial to raise the issue of Panzier's
newly alleged alcohol problem. While Kropp was not required under
the CBA to request the meeting, Kropp complied and requested an
additional meeting with Dial. As well, Kropp informed Panzier
that an additional meeting had been requested. As a result, the
record before the Court does not show that there is any evidence
that Local 618 acted discriminatory or in bad faith towards
Therefore, the Court finds that Local 618 has not breached its
duty of fair representation. Local 618's actions were not
arbitrary, discriminatory or in bad faith. See Vaca,
368 U.S. at 171. As a result, the Court grants summary judgment in favor
of Local 618 as to Count Two of Panzier's second amended
2. Whether Dial breached the collective bargaining agreement.
As the Court found above that Local 618 has not breached its
duty of fair representation and Panzier's claim against Local 618
is not viable, in turn, neither is Panzier's claim against Dial.
As stated previously, in order for a plaintiff to prevail in such
an action, he must have a meritorious claim against both the
union and the employer; the claims are interlocking in the sense
that neither is viable if the other fails. Crider,
130 F.3d at 1241. Therefore, the Court grants summary judgment in favor of
Dial and against Panzier as to Count One of Panzier's second
3. Whether the statute of limitation has run as to Panzier's
The Court notes that Dial asserted in its motion for summary
judgment that Dial and Local 618 are entitled to summary judgment
because Panzier failed to commence this action within six months
of Local 618's decision not to arbitrate Dial's final decision on
Panzier's grievance. While Dial is correct in that there is a six month statute of
limitation as to Panzier's claims, the Court finds that Panzier's
claims are not barred by the applicable statute of limitation.
In DelCostello v. Int'l Brotherhood of Teamsters,
462 U.S. 151, 155 (1983), the Supreme Court held that an employee's
"hybrid" suit against an employer for breach of a collective
bargaining agreement and a union for breach of its duty of fair
representation was subject to the six-month statute of limitations
found in § 10(b) of the National Labor Relations Act,
29 U.S.C. § 160(b). The statute of limitations begins to run "when the
claimant discovers, or in the exercise of reasonable diligence
should have discovered, the acts constituting the alleged
[violation]." Christiansen v. APV Crepaco, Inc., 178 F.3d 910,
914 (7th Cir. 1999), citing Metz v. Tootsie Roll Industries,
Inc., 715 F.2d 299, 304 (7th Cir. 1983). "Application of this
general rule turns on the context in which the claim arose."
Pulliam v. United Auto Workers, 354 F. Supp.2d 868, 872 (W.D.
In the case at bar, the clock on Panzier's claims began to run
from the time he discovered, or reasonably should have
discovered, that Local 618 would not take further action on his
grievance. Chapple v. Nat'l Starch & Chemical Co.,
178 F.3d 501, 505 (7th Cir. 1999). The determination of the accrual date
involves an objective inquiry; plaintiff's asserted actual
knowledge is not determinative if he did not act reasonably and
"in effect, closed [his] eyes to evident and objective facts
concerning accrual of [his] right to sue." Noble v. Chrysler
Motors Corp., 32 F.3d 997, 1000 (6th Cir. 1994).
Defendants assert that Panzier's CBA states that Local 618 had
thirty days from Dial's answer to Step 3 of the grievance system
to notify Dial of its intent to arbitrate. Therefore, Dial
asserts that the six month statute of limitation ran from June
28, 2003, thirty days after Dial's May 29, 2003 denial of Panzier's grievance. The Court disagrees.
The record before the Court reveals that Local 618 sent a
letter to Panzier dated June 30, 2003, in which they informed
Panzier of its decision not to arbitrate his claim. While Panzier
should have been aware that Local 618 had until June 28, 2003 in
which to notify Dial of its intent to arbitrate, it is not
unreasonable for Panzier to wait a couple of days after the June
28th deadline passed to learn of the decision, considering Local
618 may be sending him a letter at the end of the deadline, which
it in fact did. There is nothing in the record before the Court
that reveals that Panzier learned or should have learned of Local
618's decision not to arbitrate his claims any earlier than June
30, 2003. Cf. Pulliam v. United Auto Workers,
354 F. Supp.2d 868, 872 (W.D. Wis. 2005); Konen v. Int'l Brotherhood of
Teamsters, 255 F.3d 402 (7th Cir 2001). Therefore, the Court
finds that Panzier's claims began to run no earlier than June 30,
2003. And as Panzier filed this suit on December 29, 2003, it is
The Court GRANTS Defendant The Dial Corporation's motion for
summary judgment (Doc. 25) and GRANTS Defendant Local 618,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America's motion for summary judgment (Doc. 27). Accordingly, the Court DIRECTS the Clerk of the Court to enter
summary judgment in favor of Defendants The Dial Corporation and
Local 618, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and against David R.
Panzier, II. This case is now CLOSED.
IT IS SO ORDERED.
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