Opinion
Civil Action No. 97-5956.
December 17, 1999
Mr. Emerson Elder, East Orange, New Jersey, Plaintiff Pro Se.
Richard P. Weitzman, Esq., Weitzman Weitzman, P.C., Maplewood, New Jersey, Attorney for Defendant, Amalgamated Transit Union Local 819.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on two motions, namely: (1) the motion by defendant Amalgamated Transit Union Local 819 for summary judgment; and (2) the motion by plaintiff Emerson Elder to dismiss the motion by defendant Amalgamated Transit Union Local 819 for summary judgment. This matter was decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, the motion by defendant Amalgamated Transit Union Local 819 for summary judgment is GRANTED and plaintiff Emerson Elder's Complaint is DISMISSED WITH PREJUDICE. Additionally, the motion by plaintiff Emerson Elder to dismiss the motion by defendant Amalgamated Transit Union Local 819 for summary judgment is DISMISSED AS MOOT. Finally, this case is CLOSED.
STATEMENT OF FACTS PROCEDURAL HISTORY
On or about October 1, 1982, plaintiff Emerson Elder (hereinafter "plaintiff") became employed by New Jersey Transit Bus Operations, Inc. (hereinafter "NJTBO") as a bus operator. See Plaintiff's Response to Defendant Amalgamated Transit Union Local 819's Motion for a More Definite Statement, page 1. At or about the same time, plaintiff became a member of defendant Local 819 of Amalgamated Transit Union (hereinafter "Local 819" or "the Union"). See id. As an employee of NJTBO and as a member of Local 819, the terms and conditions of plaintiff's employment were governed by a collective bargaining agreement. See id.Plaintiff's employment with NJTBO was terminated by the employer on or about February 9, 1988 based upon conduct plaintiff alleges to have occurred on or about February 3, 1988. See id., page 4. Specifically, on or about February 9, 1988, plaintiff was discharged by the NJTBO at a first step grievance hearing. See id., page 5, ¶ 11(A). Thereafter, Local 819 represented plaintiff at additional steps of the grievance procedure pursuant to the terms of the collective bargaining agreement. Nevertheless, the NJTBO's decision to terminate plaintiff's employment was upheld during each step of the process. See id., page 5, ¶ 11(B), et seq. In light of the outcome of the grievance procedure, the Executive Board of Local 819 voted not to send plaintiff's grievance with the NJTBO to arbitration.
Following this decision, on May 10 and 11, 1988, plaintiff filed unfair practice charges against both the NJTBO and Local 819 with the New Jersey Public Employment Relations Commission (hereinafter "PERC"). See Interlocutory Decision and Order attached to Local 819's Statement of Material Facts Not in Dispute, Exhibit C.
The PERC found that Local 819 fairly represented plaintiff throughout the grievance process with the NJTBO, including the decision of its Executive Board not to arbitrate his grievance. See id., Exhibit C, page 5. In the same interlocutory decision and order, however, the PERC also ruled that the President of Local 819 had failed to properly advise plaintiff of his right to appeal the Executive Board's decision to the general Union membership. See id. The PERC reasoned that: "[w]e cannot predict what the membership would have done and will not speculate how the membership's action might affect the outcome of this case. We believe it appropriate to put the parties back where they would have been had the union told Elder what the next step of the procedure was." See id., Page 6. Accordingly, it ordered that the Union afford plaintiff the opportunity to appeal the Executive Board decision, in accordance with the Union's procedures, at the next regularly scheduled membership meeting.See id., page 6.
In accordance with the interim Interlocutory Decision and Order rendered by PERC, plaintiff was advised by his Union representative to appear at an August 15, 1989 general membership meeting to present his appeal. Plaintiff did not appear at that meeting, arguing later that he had not been informed of that meeting. See id., Exhibit D. In light of plaintiff's contention, he was given another opportunity to attend a general membership meeting. See id. Again, plaintiff did not appear at that meeting, claiming that there had been a death in his family. In its' final decision and Order issued November 21, 1989, the PERC ruled that the only breach of fair representation established by plaintiff related to the failure of Local 819's President to advise him of his right to appeal from the Executive Board's decision to the general Union membership. See id. The PERC further found, however, that by advising plaintiff to appear at the August 15, 1989 membership meeting to present his appeal, the Union remedied this unfair practice. See id. All remaining allegations in plaintiff's Complaint were dismissed. See id.
Plaintiff did not appeal the Final Decision and Order of the PERC to the New Jersey Superior Court, Appellate Division.
On March 9, 1992, plaintiff filed a Complaint in the United States District Court for the District of New Jersey against defendants New Jersey Transit Bus Operation, Amalgamated Transit Union Local 819 and PERC. See copy of Complaint filed March 9, 1992. This Complaint was dismissed by the Court without prejudice and without costs on March 10, 1992. See Order dated March 10, 1992. Thereafter, plaintiff then filed a Notice of Appeal with the United States Court of Appeals for the Third Circuit. See Notice of Appeal. On September 21, 1992, the United States Court of Appeals for the Third Circuit dismissed the appeal pursuant to Federal Rule of Appellate Procedure 42(b). On December 1, 1997, plaintiff filed the subject Complaint against Judge Carol Ferentz in her capacity as Superior Court Judge of New Jersey, the New Jersey Supreme Court and Amalgamated Transit Union, Local 819. See "Discrimination Demand for Trial by Jury" filed as the Complaint.
On May 4, 1998, defendants Judge Carol Ferentz and the Supreme Court of New Jersey filed a Motion to Dismiss plaintiff's Complaint. Said motion was granted by this Court on June 24, 1998.
Apparently unclear as to what plaintiff actually was alleging, on April 24, 1998, Local 819 filed a Motion for a More Definite Statement. This Court granted Local 819's motion on May 26, 1998.
On June 11, 1998, plaintiff responded to the Court's Order and provided Local 819 with a more definite statement. A review of plaintiff's submission reveals that he is essentially alleging that Local 819 breached its duty of fair representation by failing to represent him properly during the grievance procedure. See Plaintiff's Response to Defendant Amalgamated Transit Union Local 819's Motion for a More Definite Statement, ¶¶ 7, 8, 11.
On August 11, 1999, Local 819 filed the subject Motion for Summary Judgment. On September 13, 1999, plaintiff filed the subject Motion to Dismiss Local 819's Motion for Summary Judgment.
DISCUSSION
I. Standard of Review for Summary Judgment
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate at this time.
II. Statute of Limitations
The claims presented in the matter at bar are predicated upon the conduct of the Union and its officers. Said claims against the Union and its officers allege violations of a duty of fair representation which, only incidentally, arise out of the Union's collective bargaining agreement with his former employer, NJTBO. Plaintiff has not named his former employer in the present lawsuit. Although plaintiff has not named his former employer as a defendant in this matter, plaintiff's claims are nevertheless subject to a "hybrid § 301/fair representation." The United States Supreme Court has explained the "hybrid § 301/fair representation" claim:
[t]he suit against the employer rests on § 301 [of the Labor Relations Management Act], since the employee is alleging a breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act . . . `Yet the two claims are inextricably interdependent. `To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.' . . . The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The lawsuit is thus not a straightforward breach of contract suit under § 301 but, transforms into a hybrid § 301/fair representation claim, amounting to `a direct challenge to `the private settlement of disputes under [the collective bargaining agreement].'DelCostello v. International Brotherhood of Teamsters, et al., 462 U.S. 151, 164-65 (1983).
Thus, the fact that plaintiff, who is alleging that the Union unfairly represented him, chose to name only the Union as a defendant and not his former employer, NJTBO, is of no moment; the case is still considered a "hybrid § 301/fair representation" claim because such claims amount to unfair labor practice charges.
The United States Supreme Court has determined that a hybrid § 301/fair representation claim is subject to a six-month statute of limitations. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 169-71 (1983). See also Chauffers, Teamsters and Helpers, Local No. 391 v. Terry, et al., 494 U.S. 558, 566 n. 5 (1990); Pagano v. Bell Atlantic-New Jersey, Inc., 988 F. Supp. 841, 845 (D.N.J. 1997).
The limitations period "begins to run `when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.'" Pagano v. Bell Atlantic New Jersey, Inc., 988 F. Supp. 841, 845 (D.N.J. 1997) (quoting Hersh v. Allen Prods. Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986) (citations omitted)).
Plaintiff acknowledges that the subject Complaint was filed more than six months after his grievance was settled and after the PERC matter was resolved. However, citing a case brought pursuant to the New Jersey Law Against Discrimination, plaintiff contends that a six-year statute of limitations governs his case. See Plaintiff's Motion to Dismiss the motion by defendant Amalgamated Transit Union Local 819 for summary judgment, page 3. As aforementioned, plaintiff's employment with NJTBO was terminated by the employer on or about February 9, 1988 based upon conduct plaintiff alleges to have occurred on or about February 3, 1988.See id., page 4. On May 10 and 11, 1988, the Executive Board of Local 819 voted not to send plaintiff's grievance with the NJTBO to arbitration. Clearly, the time for bringing a lawsuit against these defendants has expired.
Even assuming that the pendency of the PERC proceeding tolled the applicable six-month limitations period until after that proceeding concluded, the final decision and Order by PERC was issued on November 21, 1989 — approximately three years prior to the first lawsuit plaintiff filed in this Court (1992) and approximately eight years prior to the institution of this lawsuit (1997). It appears that plaintiff simply slept on his rights. Hence, plaintiff's Complaint is barred by the statute of limitations.
This Court expresses no opinion as to whether such a proceeding would, in fact, toll the applicable statute of limitations.
CONCLUSION
For the foregoing reasons, the motion by defendant Amalgamated Transit Union Local 819 for summary judgment is GRANTED and plaintiff Emerson Elder's Complaint is DISMISSED WITH PREJUDICE. Additionally, the motion by plaintiff Emerson Elder to dismiss the motion by defendant Amalgamated Transit Union Local 819 for summary judgment is DISMISSED AS MOOT. Finally, this case is CLOSED.