Whittle v. Local 641 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-19-1995
Whittle v Local 641
Precedential or Non-Precedential:
Docket 94-5334
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Recommended Citation
"Whittle v Local 641" (1995). 1995 Decisions. Paper 134.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/134
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5334
MICHAEL J. WHITTLE; JAMES CALANDRILLO,
Appellants
V.
LOCAL 641, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL-CIO; YELLOW FREIGHT SYSTEM, INC.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 91-04235)
Argued January 12, 1995
Before: COWEN, NYGAARD and ALITO, Circuit Judges
(Opinion Filed May 19, 1995)
JOHN A. CRANER, ESQUIRE (Argued)
Craner, Nelson, Satkin & Scheer
320 Park Avenue
P.O. Box 367
Scotch Plains, NJ 07076
Attorney for Appellants
GARY A. CARLSON, ESQUIRE (Argued)
ALBERT G. KROLL, ESQUIRE
Kroll & Gaechter
25 Pompton Avenue
Suite 309
Verona, NJ 07044
Attorneys for Appellee Local 641
JEFFREY I. PASEK, ESQUIRE (Argued)
Cohen, Shapiro, Polisher, Shiekman & Cohen
12 South 12th Street
2200 PSFS Building
Philadelphia, PA 19107
Attorney for Appellee Yellow Freight
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Plaintiffs Michael J. Whittle and James Calandrillo
appeal from the summary judgment granted to the defendants in
this action under § 301 of the Labor Management Relations Act, 29
U.S.C. § 185. The district court held that plaintiff-appellants'
hybrid duty of fair representation claim was time-barred. We
will reverse.
I.
This case involves a seniority dispute brought about
when defendant Yellow Freight System, Inc. began to reorganize
its New Jersey terminal operations. Appellants were originally
hired to work in Yellow's Carlstadt terminal, where they were
represented by Teamsters Local 641. Later, Yellow opened its
Little Falls terminal, staffing it with employees from Carlstadt
and another terminal in Rockaway. Positions at Little Falls were
filled in accordance with the change of operations procedure
contained in the National Master Freight Agreement, which
provides for staffing new terminals on the basis of seniority.
Appellants wished to follow the work and transfer to
the Little Falls terminal, believing that their employment
opportunities would be greater at the new facility.
Unfortunately, they did not have sufficient seniority to bid for
jobs at Little Falls. They approached the union's business
agent, John Barnes, requesting that he help arrange a transfer.
Barnes discussed the matter with company representative Jack
Hall, who initially expressed reservations about allowing
appellants to transfer, believing that it might eventually lead
to a seniority dispute. Nevertheless, Yellow did allow
appellants to transfer to Little Falls, on condition that they
execute an agreement, under which the appellants would retain
their company seniority for noncompetitive benefits such as
health insurance and the pension plan but would be assigned a new
terminal seniority date for the allocation of all benefits for
which workers compete, such as assignment of work.
This arrangement apparently worked satisfactorily until
Yellow opened another terminal in Pine Brook, New Jersey and
closed its Little Falls facility. Yellow planned to staff the
Pine Brook terminal with employees from Little Falls and
Rockaway, and this evidently made appellants apprehensive about
their seniority vis-a-vis the Rockaway employees. They met with
Barnes and inquired whether their full seniority would be
restored after the move to Pine Brook. Barnes offered no
comfort, however, taking the position that the agreement
appellants signed in 1988 worked a permanent forfeiture of their
Carlstadt seniority.
Although appellants knew that employees from Rockaway
with less company seniority had been placed higher on the Pine
Brook competitive seniority list [app. 122],1 they waited until
December 7, 1990 before grieving [app. 141]. Barnes then brought
1Appellants assert on appeal that they noticed for the first
time in December 1990 that the Rockaway employees had greater
competitive seniority. They have provided no citation to the
record to support their assertion, hence we will disregard it.
the matter to arbitration. On March 26, 1991, the Joint Local
Committee of North Jersey held a hearing, at which Barnes merely
explained to the Committee "exactly how everything happened"
regarding the seniority and transfers. Appellants were present
at the hearing, but did not dispute or add to anything Barnes
said. Although the grievance was not filed until eleven months
after appellants' January 2, 1990 transfer to Pine Brook, Yellow
never asserted at the hearing that the grievance was untimely.
The Committee ruled against appellants the day of the hearing,
mailing a written confirmation on May 2, 1991.
On September 25, 1991, appellants filed this hybrid
suit under § 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185. They alleged that Yellow's action with respect to their
seniority violated the collective bargaining agreement and that
Local 641's failure to prosecute their cause vigorously before
the Joint Local Committee breached the union's duty of fair
representation.
The district court granted summary judgment to
appellees, holding that appellants' suit was time-barred. After
concluding that their cause of action accrued on January 2, 1990,
it reasoned that appellants' failure to file either a grievance
or a legal action within six months of that date made their
federal suit untimely. Relying on Benson v. General Motors
Corp., 716 F.2d 862 (11th Cir. 1983), the court held that the
limitations period begins to run when the employee knew or should
have known of the loss of seniority. We disagree.
II.
For limitation of actions, a cause accrues when it is
sufficiently ripe that one can maintain suit on it. Skyberg v.
United Food & Commercial Workers Int'l Union, 5 F.3d 297, 301
(8th Cir. 1993) (quoting Santos v. District Council of United
Bhd. of Carpenters, 619 F.2d 963, 968-69 (2d Cir. 1980)); City of
Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112, 121 (3d Cir.
1993); Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 163 (2d
Cir. 1989). Accordingly, the six-month limitations period for
this action could have run only if appellants were entitled to
file their suit on January 2, 1990.
The Benson plaintiffs agreed to cede their existing
seniority in exchange for "preferential consideration" at another
General Motors plant. They transferred to the other facility,
but received no preferential treatment and were soon laid off.
They then filed a hybrid suit against their employer and their
union. Because the collective bargaining agreement required that
seniority lists be posted, the Court of Appeals held that the
limitations period started to run as soon as the list was posted
and the employees knew they had lost seniority. 716 F.2d at 864.
Significantly, however, the seniority dispute in Benson was
neither grieved nor arbitrated, because both parties took the
position that the matter was not arbitrable. See Benson v.
General Motors Corp., 539 F. Supp. 55, 56 (N.D. Ala. 1981),
vacated, 716 F.2d 862 (11th Cir. 1983).
When a grievance procedure does apply, the employee-
plaintiff is required to at least attempt to exhaust his or her
remedies under that procedure before a § 301 suit can be filed
against the employer. DelCostello v. International Bhd. of
Teamsters, 462 U.S. 151, 163, 103 S. Ct. 2281, 2290 (1983);
Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614,
616 (1965). Here, the union did not arbitrarily refuse to press
appellants' grievance, but pursued it to arbitration, which the
employees lost. Hence, there was no way for the employees to
know whether they suffered any loss from the union's alleged
breach until the arbitration decision was issued. It is possible
that appellants could have won the arbitration, even if the
union's zeal fell below the horizon of fair representation owed
appellants. See Lucas v. Mountain States Tel. & Tel., 909 F.2d
419, 421 (10th Cir. 1990) (per curiam); Ghartey, 869 F.2d at 163.
Here, appellants' claim accrued when the adverse arbitration
decision was reached. See Childs v. Pennsylvania Fed'n Bhd. of
Maintenance of Way Employees, 831 F.2d 429, 436 (3d Cir. 1987)
(Railway Labor Act); Hayes v. Reynolds Metals Co., 769 F.2d 1520,
1522-23 & n.3 (11th Cir. 1985); cf. Vadino v. A. Valey Eng'rs,
903 F.2d 253, 261 (3d Cir. 1990) ("Allowing the section 301 claim
to be tolled until the unfair representation claim also accrues
is consistent with the congressional goal of resolving labor
disputes in the first instance through the collectively bargained
grievance procedure. . . .").
In Hayes, bargaining unit employees voted to combine
two job classifications and, as a result, plaintiff was laid off.
He pursued his grievance through the preliminary stages of the
grievance procedure, then later requested the union to take the
matter to arbitration. Three months after his layoff, the union
voted not to arbitrate plaintiff's grievance. 769 F.2d at 1521.
The district court held that appellant's § 301 suit accrued
either "when the merger of the seniority rosters became effective
and certainly no later than plaintiff's termination[,]" noting
that the seniority lists had been posted on or before his layoff.
Id. at 1522. The Court of Appeals reversed, holding that the
limitations period began to run on the day the union notified
plaintiff it would not arbitrate. Id. The court distinguished
its earlier decision in Benson by pointing out that in Benson
there was no applicable grievance procedure. Id. at 1523 n.3.
We conclude that appellants' cause of action accrued no
earlier than March 26, 1991, the date of the adverse arbitration
decision. Because their complaint was filed on September 25,
1991, it was timely.
That brings us to the effect appellants' delay in
filing the grievance should have on timeliness. Initially, we
note that there is some question which contractual limitation
period applies to grievances challenging seniority lists.
Article 5, section 4 of the National Master Freight Agreement
contains a thirty-day limitation, while article 44, section 2
contains only a ten-day limitation. We will assume, without
deciding, that the ten-day period applied.
The parties here arbitrated their dispute on the
merits, and neither raised the issue of timeliness before the
arbitrator. Timeliness, of course, is a procedural issue, and in
an arbitration proceeding procedural issues are for the
arbitrator to decide. See John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 557, 84 S. Ct. 909, 918 (1964); Troy Chem. Corp. v.
Teamsters Union Local No. 408, 37 F.3d 123, 126-27 (3d Cir. 1994)
(applying Association of Flight Attendants v. USAir, Inc., 960
F.2d 345, 349 (3d Cir. 1992)). Neither party cites, nor have we
found a case specifically dealing with objections based on
timeliness. Nonetheless, failing to raise a defense before the
arbitrator generally results in a waiver of the defense, the
rationale being that it would be unfair to allow a party to take
a case through arbitration, then repudiate the award based on
defenses not raised in that forum. See Teamsters Local Union No.
764 v. J.H. Merritt & Co., 770 F.2d 40, 42-43 (3d Cir. 1985);
United Steelworkers Local 1913 v. Union R.R. Co., 648 F.2d 905,
913 (3d Cir. 1981); Amalgamated Meat Cutters Local 195 v. Cross
Bros. Meat Packers, Inc., 518 F.2d 1113, 1121 n.19 (3d Cir.
1975); Lodge No. 75, Int'l Ass'n of Machinists v. Mooney
Aircraft Inc., 410 F.2d 681, 683 (5th Cir. 1969).
In Mooney, for example, the collective bargaining
agreement required the arbitrator to reach a decision within
three days of a grievance hearing. Notwithstanding that, the
arbitrator handed down its decision forty-four days after a
hearing and, the losing party filed a § 301 suit. The Fifth
Circuit Court of Appeals held that, by not objecting to the delay
immediately after the three-day period, the losing party waived
the issue. Likewise, if the appellees in this case believed that
appellants' grievance was untimely, it was incumbent upon them to
object in the arbitration, rather than arguing it now. In sum,
the employees' failure to file a timely grievance has no bearing
on the timeliness of their § 301 suit.
III.
Because the district court erred when it found
appellants' suit to be time-barred, we will reverse its judgment
and remand the cause for proceedings on the merits.