Opinion
Case No.: 1:02CV7338
May 4, 2004
John D. Franklin, Tracy A. Lipinski, Law Office of John D. Franklin, Toledo, OH, for Rod R. Bloedow, Plaintiff.
Todd A. Dawson, John B. Lewis, Baker Hostetler, Cleveland, OH, Jeremy R. Sayre, Ward Smith, Raleigh, NC, for CSX Transportation, Inc., Defendant.
Harold A. Ross, Ross Kraushaar, Cleveland, OH, for The Brotherhood of Locomotive Engineers, Defendant.
Michael S. Wolly, Zwerdling Paul Leibig Kahn Wolly, Washington, DC, for The Brotherhood of Locomotive Engineers, Defendant.
MEMORANDUM AND ORDER
This action concerns Bloedow's seniority date as a locomotive engineer in the employ of CSX Transportation, Inc. ("CSX"). Under federal statute, Bloedow asserts three "hybrid" claims for breach of contract and breach of the duty of fair representation against CSX and his union, the Brotherhood of Locomotive Engineers ("BLE"). He also asserts a state common law claim for breach of contract. CSX and BLE filed summary judgment motions, which this court referred to a magistrate judge. For the reasons that follow, the court adopts Magistrate Judge Streepy's report and recommendation and grants summary judgment in favor of both defendants.
I. DISCUSSION
A. Background
Bloedow contends that his seniority date as a CSX locomotive engineer should be December 2, 1998. CSX hired Bloedow as a trainman-conductor in 1998 and he applied for the training course needed to become a locomotive engineer. In November 1998 there was a shortage of engineers at CSX's Walbridge, Ohio facility, prompting CSX to ask the trainmen's union ("UTU") to assign trainmen there to take the engineer training course. Bloedow was not given the opportunity to take the course that started on December 2, 1998, but some more junior trainmen were. Instead, Bloedow was enrolled in the next course, commencing on February 22, 1999.
On December 9, 1998 Bloedow sent a grievance letter to his UTU vice chairman, contending that Rule 97 of the 1994 collective bargaining agreement ("CBA") between CSX and the UTU obligated CSX to inform him of its need for engineers. On January 6, 1999 the UTU wrote a letter of complaint to CSX's Director of Employee Relations on Bloedow's behalf. The CSX official responded by letter dated January 20 and the UTU replied by letter dated January 28. The UTU and CSX apparently reached a common understanding: (1) Bloedow had been "runaround," i.e. bypassed by junior trainmen who were accepted into the December 1999 course; but (2) the UTU had agreed to waive the CBA's posting requirements due to the critical shortage of engineers. The UTU pointed out the practice of granting such bypassed employee the same seniority date as the junior employees accepted into training for the higher position before him.
On March 5, 1999 CSX agreed to resolve the dispute by promising that if Bloedow finished the February 1999 course, he would be accorded the December 1998 seniority date. This letter from CSX to the UTU is what Bloedow calls "the settlement agreement." (CSX's letter states that it sent a copy to a BLE Chairman Menefee, but Menefee denies ever receiving it.) In August 1999, Bloedow finished the engineers course (and became a member of the BLE). Consistent with CSX's March 5, 1999 letter to the UTU, CSX posted Bloedow's seniority date as December 2, 1998.
In September 2000, however, CSX changed the date to February 22, 1999, apparently because the BLE's Menefee insisted the later date was the right one. Bloedow states that he became aware of the adverse change to his seniority date on September 15, 2000. He tried to have the earlier date reinstated, including meeting with Menefee. Menefee made hopeful comments but gave evasive answers to his questions and requests for the earlier date. After October 2000 Bloedow had no communication with Menefee, dealing instead with subordinate BLE official Barber. Bloedow and Barber exchanged numerous e-mails and telephone calls from about November 2000 through March 2002, but the BLE was unable or unwilling to ask CSX to reinstate the earlier seniority date.
According to Bloedow, in March 2002 he and Barber had a meeting in which Barber told him to go ahead and file a lawsuit if that was what he planned to do. On April 30, 2002 Bloedow received a letter from CSX stating that in August 2000, the BLE had "directed" CSX to move his seniority date to February 1999. Bloedow filed the instant action on July 3, 2002.
B. Bloedow's Federal "Hybrid" Claims are Barred as Untimely
Section 9(a) of the National Labor Relations Act ("NLRA") grants unions exclusive representational status over employees who comprise a bargaining unit and imposes a duty of fair representation on the union. See EEOC v. The ESAB Group, 208 F. Supp.2d 827, 832 (N.D. Ohio 2002) (citing Humphrey v. Moore, 375 U.S. 335, 342 (1964)), op. withdrawn in part o.g. (Aug. 20, 2002). This duty requires the union to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Black v. Ryder, 15 F.3d 573, 584 (6th Cir. 1994). The union's duty does not depend on the existence of a collective bargaining agreement; rather, it "flows from the union's statutory position as the exclusive representative and exists both before and after the execution of an agreement." Pratt v. UAW, 939 F.2d 385, 388 (6th Cir. 1991). The NLRA provides,
Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board shall have power to. . . . Provided: that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . .29 U.S.C. § 160(b). In 1983 the Supreme Court adopted § 160(b)'s six month limitations period for all hybrid fair representation/breach of contract claims "that implicate concerns similar to those that are at stake in unfair labor practice charges brought under the NLRA." Martin v. Lake Cty. Sewer Co., 269 F.3d 673, 677 (6th Cir. 2001) (citing DelCostello v. IBT, 462 U.S. 151, 169 (1983)).
Bloedow filed this action on July 3, 2002, so his claims are timely only if the alleged unfair representation occurred on or after January 3, 2002. The statute of limitations on such claims begins to run "when an employee discovers, or should have discovered with exercise of due diligence, acts giving rise to the cause of action." Martin, 269 F.3d at 678-79 (quoting Wilson v. IBT, 83 F.3d 747, 757 (6th Cir.), reh'g denied, 1996 WL 441029, cert. denied, 519 U.S. 1041 (1996)). A hybrid claim "accrues against a company defendant at the same time it accrues against a union defendant, since the predicate for the entire action is that the union breached its duty of fair representation." Rubalcava v. Wheeling-Pittsburgh Steel Corp., 1985 WL 9358, at *2 (S.D. Ohio Apr. 11, 1985) (citation omitted); see also Howell v. GMC, 19 Fed. Appx. 163, 166, 2001 WL 856953, at *2 (6th Cir. June 22, 2001) (citing Fox v. Parker Hannifin Corp., 914 F.2d 795, 803 (6th Cir. 1990)).
First, as Magistrate Judge Streepy noted, Bloedow knew or should have known in September 2000 that CSX had moved back his engineer seniority date. Bloedow responded that the issue is not when he discovered the change in the seniority date, but when he discovered that CSX and BLE "colluded and conspired" to breach the March 5, 1999 letter — which he characterizes as a "settlement agreement" — wherein CSX assured UTU that he would be accorded the earlier seniority date. By Bloedow's own statement, he sent an e-mail in January 2001 opining that BLE official Menefee went "out of the way to diminish and destroy" Bloedow's seniority rights. Then, in October 2001 Bloedow sent an e-mail stating that Menefee had "corrupted" Bloedow's seniority by calling CSX to advise them that the later seniority date was appropriate under the CBA.
These facts support the finding that by January 2001, and certainly October 2001, Bloedow knew CSX and the BLE might have acted together to change his seniority date, and that BLE had not rendered fair representation in his view. Indeed, by that point Bloedow had reason to know that the BLE (through Menefee) had actively opposed giving him the earlier seniority date. See EEOC v. The ESAB Group, 208 F. Supp.2d 827, 832 (N.D. Ohio 2002) (employee's hybrid claim accrued when it became "clear that . . . union officials opposed giving [him] the [disability] accommodation he sought since they believed that it conflicted with the seniority provisions of the" CBA).
Even if Bloedow honestly believed there was still a chance of resolving his grievance without going to court, that belief does not delay accrual of his claims. See Rubalcava v. Wheeling-Pittsburgh Steel Corp., 1985 WL 9358, at *2 (S.D. Ohio Apr. 11, 1985) (claim accrues when plaintiff should have known union breached duty, "even if some possibility of non-judicial enforcement remains") (citing, inter alia, Rose v. GMC, 573 F. Supp. 747, 752 (S.D. Ohio 1983)); accord Santos v. District Council of NYC, 619 F.2d 963, 969 (2d Cir. 1980).
Moreover, Bloedow's October 5, 2001 e-mail to Menefee's subordinate explicitly set a date of December 15, 2001 by which he threatened to sue if BLE (and CSX) did not correct his seniority date. If Bloedow himself felt a lawsuit was appropriate and necessary to enforce his rights — namely, his right to fair representation, and to enforcement of the alleged March 5, 1999 agreement between CSX and BLE — he necessarily knew of the basis for his claims when he communicated the deadline.
When Bloedow's declared deadline came and went with no action by the BLE to pursue his grievance, that was further reason to realize the BLE was "stonewalling" and not providing fair representation — especially in light of the BLE's alleged inaction in response to his grievance in the preceding months. Cf. Martin v. Lake Cty. Sewer Co., 269 F.3d 673, 678-79 (6th Cir. 2001) (when union failed to give plaintiff a copy of the CBA for two months after his termination, "[h]e should have been aware by then that the Union was not going to file a grievance on his behalf, especially given the Union's alleged reluctance to pursue his" grievances in the past); Konarske v. Ford Motor Co., 1992 WL 584105, at *4 (E.D. Mich. Aug. 24, 1992) (hybrid claim accrued at point when plaintiff came to "underst[and] that no grievance was going to be filed on his behalf by the union").
For these reasons, the Magistrate Judge Streepy correctly concluded that there is no genuine issue as to the fact that by December 15, 2001, Bloedow had sufficient knowledge to trigger accrual of his hybrid claims. Consequently, absent equitable tolling, section 160(b)'s six month limitations period on those claims expired no later than May 15, 2002, two months before Bloedow filed this action.
The fact that the union (in Bloedow's view) continued to breach its duty of fair representation after that date, does not extend the limitations period on a continuing violation theory. See Perez v. Roadway Express, 281 F. Supp.2d 936, 940 (N.D. Ohio 2003); Former Frigidaire Employees Ass'n v. Internal'l Union of Elec., Radio and Mach. Workers, 573 F. Supp. 59, 62 (S.D. Ohio 1983); Adkins v. GMC, 573 F. Supp. 1188, 1192 (S.D. Ohio 1983) ("Once the original damage is lodged, the mere fact that the Defendants are `continuing' to implement allegedly improper collective bargaining agreements does not convert Plaintiffs' loss of jobs into a `continuing violation.'"). Accord Tapia v. Local 11, 11 Fed. Appx. 941 (9th Cir. 2001) ("there is no `continuing violations' theory for hybrid claims") (citation omitted).
Lastly, the magistrate judge correctly concluded that Bloedow has not shown fraudulent concealment by CSX or BLE that would toll the limitations period on his hybrid claims. As the Circuit stated in a similar action against the BLE, the employee's failure to file his hybrid claimscould be excused if the plaintiff could demonstrate that the defendants fraudulently concealed any facts respecting the accrual or merits of his claim. [B]ut in order to prove fraudulent concealment, plaintiff must show that he failed to discover facts that serve as the basis of his cause of action despite due diligence on his part to discover the facts, and that the concealment was fraudulently committed by the party or parties sought to be held responsible by the plaintiff.
Homely v. BLE, 2003 WL 21525117, at *5 (6th Cir. 2003) (quoting Chrysler Workers Ass'n v. Chrysler Corp., 834 F.2d 573, 579 (6th Cir. 1987), cert. denied, 486 U.S. 1033 (1988)); see also Foster v. Forest Hill Dairy, 28 F.3d 1213, 1994 WL 330034 (6th Cir. July 11, 1994). As in Hanely, even if Menefee or others effectively assured Bloedow his grievance would be addressed, that is not enough for fraudulent concealment under the circumstances. Cf. Borkins v. USPS, 1994 WL 780900, at *2 (E.D. Mich. May 13, 1994) (hybrid claim was untimely, notwithstanding plaintiff's argument that limitations period, should be tolled for period during which union misled him into believing he might be reinstated), aff'd, 41 F.3d 1506 (6th Cir. 1994), cert. denied, 516 U.S. 826 (1995).
Even if Bloedow sincerely believed CSX and BLE were addressing his grievances, and refrained from suing on that basis, that does not excuse his untimeliness. It was manifestly unreasonable for him to keep "buying" such hollow assurances — if they were assurances — over an extended period during which he himself says the company and union met his grievance with inaction and evasion. It is of no avail that the BLE never expressly told Bloedow it would not pursue his grievance. "A prospective § 301 hybrid claimant need not have official notification of a union's possible breach of its duty of fair representation in order for rights to accrue for statute of limitations purposes. Rather, prolonged or unreasonable delay by the union is enough to put a person on notice of the existence of her claim." Gately v. Textron, Inc., 125 F.3d 855, 1997 WL 618825, at *2 (6th Cir. Oct. 6, 1997) (per curiam) (citing Pantoja v. Holland Motor Express, 965 F.2d 323, 327 (7th Cir. 1992)); see also Bippus v. Local 100, 1984 WL 2315, at *6 (S.D. Ohio Jan. 10, 1984) ("As they knew or should have known that the grievances would not be processed, they surely could have taken some action in this regard many months earlier"), aff'd, 770 F.2d 165, 1985 WL 12785 (6th Cir. July 17), cert. denied, 474 U.S. 1007 (1985). For example, when affirming the dismissal of a hybrid claim as untimely, our Circuit wrote, "In light of plaintiff's testimony that he felt the Union was giving him the `run-around,' the Union's inactivity after the . . . letter should have put him on notice of his claim against the Union." Yates v. Memphis Bakery Employers Ass'n, 907 F.2d 151, 1990 WL 94211 (6th Cir. June 28), cert. denied, 498 U.S. 986 (1990).
In addition, there is no evidence that anyone tried to conceal the BLE's role in inducing CSX to change Bloedow's seniority date. On September 20, 2000 UTU general chairman Reed wrote to CSX on behalf of Bloedow, acknowledging that BLE official Menefee had objected to giving Bloedow the earlier date. See CSX's Response, Ex. 1. The next day, CSX's senior director for labor relations sent a response stating, "It is quite clear in our conversations with General Chairman Menefee that he is unwilling to restore Mr. Bloedow's seniority to December 2, 1998." Id., Ex. 2. In short, nothing CSX or BLE allegedly did or said could have prevented a reasonable person in Bloedow's position from realizing that there was a potential basis for his claims against CSX and the BLE by December 2001 or earlier. See Noble v. Chrysler, 32 F.3d 997, 1002 (6th Cir. 1994) (rejecting fraudulent concealment argument and refusing to toll limitations period on hybrid claims).
C. Bloedow Has Waived his Right to Appeal the Dismissal of his State Law Claim
The magistrate judge recommended that Bloedow's state law claim be dismissed as preempted by federal law. Cf. Bickers v. Internat'l Ass'n of Machinists Aerospace Workers, 2001 WL 493411, at *2 (6th Cir. May 1, 2001) (state law contract claim was preempted because it was based on same allegations as claims for breach of duty of fair representation) (citations omitted). Bloedow did not object to this portion of the report, so he has waived his right to appellate review thereof. See James v. Hurley, 2004 WL 540474 (6th Cir. Mar. 17, 2004); Sutton v. SBA, 2003 WL 22976561, at *1 (6th Cir. Dec. 4, 2003). The report advised Bloedow of the deadline for objections, and warned that any objection not timely filed would be waived. See Purk v. US, 2003 WL 22435642 (6th Cir. Oct. 23, 2003). Moreover, Bloedow was aware of the need to object, because he did so with regard to the rest of the report. Cf. Young v. S.E. Johnson Cos., 2004 WL 500980, at *1 (6th Cir. Mar. 11, 2004) (plaintiff was "clearly aware of the requirement to file objections" to second report, "as he had filed objections to the magistrate judge's original report").
II. CONCLUSION
The report and recommendation of the magistrate judge is adopted, and CSX and BLE's motions for summary judgment [docs. 30 and 33] are granted. This is a final and appealable order.
IT IS SO ORDERED.