Opinion
CIVIL NO. 99-CV-284 (JBS).
September 18, 2000
F. Michael Daily, Jr., Esq., Quinlan, Dunne, Daily Higgins, Merchantville, N.J., Attorney for Plaintiff.
Marvin M. Goldstein, Esq., Proskauer Rose LLP, Newark, N.J., Attorney for Defendants.
OPINION
In this labor employment dispute plaintiff Ronald Walczak has alleged that his former employer, Interstate Brands t/a Wonderbread, wrongfully terminated his employment in contravention of the New Jersey Law Against Discrimination, and his union's collective bargaining agreement (CBA). Presently before the Court is defendants' motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P.
Plaintiff concedes that defendants are entitled to summary judgment as against (1) his claim arising under New Jersey's Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-2 to 34:19-8 (Count II), (2) his claim of tortious interference with contract (Count IV), and (3) his claim premised on defendants' alleged violation of public policy (Count V). (Pl. Opp'n Br. at 1.) All claims included in Counts II, IV and V will be voluntarily dismissed accordingly. This Court does not adjudicate the claims in Counts II, IV and V upon summary judgment, however, because as explained below, the Court does not exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) with respect to these claims arising at state law.
This matter was removed here from state court on the basis of this Court's jurisdiction over plaintiff's allegation that defendants breached his contractual rights as governed by the federal Labor Management Relations Act (LMRA). This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Consequently, this Court's chief inquiry here is whether plaintiff has created a genuine issue as to whether defendants' actions violated the LMRA. For reasons discussed herein the Court finds that plaintiff's LMRA-based claims do not survive defendants' motion. Accordingly, the Court will enter summary judgment against plaintiff's claims arising under the LMRA, and will remand the remainder of this case to the state court from which it was removed.
BACKGROUND
Plaintiff, a 54 year-old white male, worked from 1982 to 1998 as a forklift driver and shipper at the Bellmawr, N.J. facility of Interstate Brands/Wonderbread (IBC), a wholesale baker and distributor of bread and snack cakes. Plaintiff's employment at IBC at all times was governed by the CBA negotiated between IBC and plaintiff's union, the International Brotherhood of Teamsters. Plaintiff was fired for dishonesty and "theft of time" shortly after IBC managers videotaped him talking on the phone and talking to others for almost one hour during his shift.
The parties dispute the origin of the videotape surveillance that captured plaintiff talking on the phone. Defendants maintain that the surveillance was implemented in an effort to catch the employee who had stolen several so-called "Safety Break Awards" — small prizes awarded to employees for each month that the employees worked safely. (Dinene Dep. at 91:8-14.) Among the pilfered prizes were movie tickets stolen from the Bellmawr mailbag on December 4, 1997. (Ellis Dep. at 16:5-23.) In an effort to catch the thief, defendants decided to surveil the Bellmawr facility in the vicinity of the mailbag on the evening of Sunday, March 22, 1998 for the purpose of catching the person(s) involved. On that date, William Ellis, IBC Director of Loss Prevention set up a video camera pointed towards a hook on the wall where the mailbag would be placed. (Ellis Dep. at 22:10-14, 35:11-36:3; Dinene Dep. at 97:11-98:24.) Plaintiff has not come forward with any evidence that this explanation of the reason for the surveillance was pretextual or even implausible. During the course of the surveillance, Ellis and Tony Dinene, Sales Manager for IBC, watched as plaintiff received three phone calls: (1) from 7:01 to 7:18 p.m., (2) from 7:28 to 7:31 p.m., and (3) from 8:11 to 8:18 p.m. (Ellert Cert. Ex. K-L.) Plaintiff was also observed stopping his duties and speaking to a transport driver from (1) 9:10 to 9:13 p.m., (2) from 9:47 to 9:51 p.m., and (3) from 10:03 to 10:21 p.m. (Ellert Cert., Ex. L.) Thus, in the period between 7:01 p.m. and 10:21 p.m., plaintiff was seen engaging in personal conversations for 52 minutes, according to the evidence, not including his permitted 15-minute breaks.
On the evening of March 23, 1998, defendants held a meeting with plaintiff to discuss the previous evening's events. Present were plaintiff, Ellis, Dinene, Wonderbread Manager Jack O'Donnell, and the Union Shop Steward, Steve Cabey. (Walczak Dep. at 56:20-57:13.) Plaintiff admitted that he took two phone calls from his wife and two from his father while he was on the clock, and admitted that he talked with the transport driver. Plaintiff also admitted that he took both of his 15 minute breaks after he had taken the personal phone calls. (Walczak Dep. at 59:24-80:20.) At the conclusion of the meeting, plaintiff was suspended pending further investigation, for theft of time. (Id. at 82:9-21.)
According to defendants, the phrase "theft of time" describes the act of an employee being paid for time not worked. (Hudson Dep. at 29:20-23.) Wonderbread's Time Card and Time Clock Policy, which was signed off on by plaintiff on July 1, 1982, provides in relevant part that "No employee will tend to personal business while on the clock. This is to be done on your designated break or lunch hour. Violations of the above will result in disciplinary action. Any violation which results in the employee getting or attempting to get paid for time not worked, will be considered stealing from the Company and [will] result in immediate discharge." (Ellert Cert. Ex. D.)
Plaintiff argues that defendant's proffered explanation for the video taped surveillance is pretextual and that Wonderbread was instead looking for reasons to fire him in favor of a younger worker. While plaintiff does admit that he spent almost an hour talking on the telephone and talking to the driver on the night in question (Pl. Br. in Opp'n at 3), he asserts that his firing was unwarranted b/c his record was otherwise spotless, and he had never before been disciplined for misconduct. Plaintiff further alleges that there are no other instances of employees discharged solely on allegations of theft of time. (Id. at 5.)
After his termination, plaintiff on March 25, 1998 filed an appropriate grievance with his union contesting his suspension. The record here shows that in April 1998 union representative Ernest Clements met with plaintiff to discuss the grievance, and that plaintiff admitted to speaking on the phone and talking with the driver. (Clements Cert. ¶¶ 1-4.) Plaintiff states that he advised Clements he felt his suspension and pending termination was uncalled for, and that there were several previous instances at IBC where employees had been found to have stolen time, but were only suspended, not fired. (Walczak Aff. ¶ 1-6.)
At plaintiff's formal grievance hearing on April 21, 1998 hearing, the union argued against the firing. Clements represented plaintiff. Also in attendance were union shop steward Steve Cabey, Dinene, Ellis and O'Donnell. During the proceeding, plaintiff admitted to all of the conduct of which he was accused. Clements argued that plaintiff was not aware that he was doing anything wrong by receiving calls or talking to the driver. Clements also argued that plaintiff should not be fired due to his longevity and the absence of any prior discipline. Finally, plaintiff was given the opportunity to speak on his own behalf. (Clements Cert. ¶ 10-14.) Notwithstanding Clements's advocacy, at the meeting's conclusion plaintiff was fired. (Id. ¶ 15.)
After the termination meeting, plaintiff contacted Mr. Clements several times regarding his status. Clements advised plaintiff that IBC was not going to change its position regarding his termination, but he offered to explore the possibility of IBC allowing plaintiff to resign in lieu of termination, an option plaintiff refused. (Id. ¶ 16.) Clements subsequently consulted with union attorneys regarding plaintiff's termination. The union attorney advised Clements that he was aware of previous grievances with similar facts that had been lost at arbitration. (Id. ¶ 18.) Indeed, it is the undisputed testimony of IBC Human Resource Manager Nancy Hudson that during the eight (8) year period prior to the filing of plaintiff's complaint, 13 employees were terminated for theft of time. One of these employees, Jude Fitzpatrick, was terminated for theft of time for a 12 minute non-working conversation with a two-truck driver while on paid time. The Union arbitrated, but the termination was upheld. (Hudson Cert. ¶ 14-17 Ex. B at 12-13.) Clements states that in light of this precedent, plaintiff's admissions, and the lack of any substantial mitigating factors, the attorney advised against arbitration as, in his professional opinion, there was virtually no chance of success and to arbitrate would be an inappropriate expenditure of union funds. (Id.)
There is no merit to plaintiff's claim that Clements violated his confidence when he spoke to a union attorney about the likelihood of success on the merits if the union were to proceed to arbitration. The union cannot be expected to withhold information from its own attorneys, nor can it be expected to blindly go forward with an arbitration without first assessing its merit.
By letter dated May 12, 1998, Clements advised plaintiff that his grievance had been reviewed by the union's legal staff and that there were no facts to substantiate proceeding to arbitration. (Clements Cert. Ex. A.) Plaintiff then on May 18, 1998 sent Clements a letter requesting an executive board meeting. (Walczak Dep. at 163:6-22.) Thereafter Clements informed plaintiff that the local union had had a meeting and there would be no arbitration. (Id. at 165:20-186:24.)
On October 13, 1998 plaintiff filed a charge against his union with the NLRB, alleging the union breached its duty to fairly represent him. (Ellert Cert. Ex. U.) Plaintiff later withdrew this charge after the NLRB advised him that there was nothing they could do to prove his charges against the union. (Walczak Aff. ¶ 7.)
DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show 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." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986);Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996);Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert.dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.Celotex, 477 U.S. at 322-323. In such situations, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50;Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must 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). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Requirements that Must be Met for a Union Member to Bring a LMRA Claim in Federal Court
Plaintiff contends that in firing him for the relatively minor offense of taking time out for personal conversations during his shift, defendants breached their pact under the CBA that plaintiff could only be fired for just cause. (Am. Compl. Count III.) Specifically, (1) plaintiff argues that IBC had no just cause to fire him, and (2) that his union forsook its duty to advocate on his behalf and breached its contractual duty to fairly represent him. (Pl. Br. in Opp'n at 5.) Plaintiff contends that the union did not push for arbitration because his union representative, Clements, too-quickly accepted IBC's characterization of his conduct as an instance of dishonesty, and thus subject to immediate discharge under CBA Article 13, subpart 3.
Relevant portions of the CBA governing plaintiff's employment provide that except for the following enumerated causes, no employee shall be dismissed for his first offense, but shall receive at least one written warning:
The parties agree that causes for dismissal without first discussing the matter with first discussing the matter with the Business Manager or the Shop Steward shall be the following:1. Calling or participating in any unauthorized strike, work stoppage or walkout. 2. Drunkenness, drinking during working hours . . . .
3. Theft or dishonesty, including but not limited to falsifying of accounts, records, reports, etc., failure to account for monies collected for the account of the Company.4. Unprovoked assault on the Employer or the Employer's representative.
5. Carrying unauthorized persons on the Employer's vehicle. In each instance under the foregoing, the Employer shall promptly notify the Union of the action taken.
The parties agree that a dismissal or suspension shall not be subject to grievance or arbitration as provided in this Agreement unless the Union shall have notified the Employer, in writing, or [of] its intention to do so within two (2) weeks of the dismissal or suspension.(CBA Art. 13 at 9, Pl. Ex. A.)
Mr. Walczak concedes that his contract claim, because it addresses rights arising under a collective bargaining agreement, is preempted by § 301 of the LMRA. (Id. at 8.) Section 301 of the Labor Management Relations Act of 1947 (28 U.S.C. § 185 (a)) confers jurisdiction to the federal courts over disputes concerning violations of collective bargaining agreements in order to ensure "uniform application" the LMRA.Vaca v. Sipes, 386 U.S. 171, 179 (1967). Accordingly, this Court's jurisdiction is proper insofar as plaintiff's complaint states claims arising under the LMRA.
1. Whether Plaintiff has Adduced Evidence that the Union has Breached its duty of Fair representation
When a union employee feels that he has been wrongfully discharged and that his union has failed to prevent his wrongful termination, the employee may join as defendants both the employer and the union. Humphrey v. Moore, 375 U.S. 335 (1964).
Because unions serve as the exclusive bargaining agent for all employees in a collective bargaining unit, courts have imposed on such unions a duty of fair representation in negotiating and enforcing collective bargaining agreements. Vaca v. Sipes, 386 U.S. 171 (1967). This duty requires unions to "serve the interest of all members without hostility or discrimination towards any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id. at 177. It is necessary to prove a breach of this duty on the part of the union before the union or the employer may held liable for damages arising from an alleged breach of the CBA. DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983).
Where, as here, a defendant asserts that the plaintiff has failed to exhaust his remedies under the CBA, an employee might still prevail against such a defense, provided that he could demonstrate that the union had breached its duty of fair representation. Id. at 186. Accordingly, both the merits of an employee's underlying § 301 claim, and his ability to overcome a failure to exhaust, turns on the employee's ability to show that the union breached its duty of fair representation when it failed to take a dispute to arbitration as required under the CBA.
Union employees do not have an absolute right to arbitration. The union's duty to represent the varied interests of its constituent members requires that it be afforded a certain amount of discretion in deciding how best to safeguard those interests. Masy v. New Jersey Transit Rail Operations, Inc., 790 F.2d 322, 328 (3d Cir. 1986). "The mere refusal of a union to take a complaint to arbitration does not establish a breach of duty, even if the member's claim was meritorious." Findley v. Jones Motor Freight, Div. Allegheny Corp, 639 F.2d 953, 958 (3d Cir. 1981). Even where it appears that the union has failed to arbitrate an apparently meritorious claim, "[a] breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining agreement is arbitrary, discriminatory or in bad faith." Cole v. Pathmark of Fairlawn, 672 F. Supp. 796 at 804 (D.N.J. 1987).
In order to overcome a summary judgment motion, a plaintiff asserting a § 301 claim must adduce admissible evidence tending to show that the union's conduct was in fact arbitrary, discriminatory, or undertaken in bad faith. Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981). More than mere unsupported allegations are required to justify a finding of bad faith. Where a plaintiff has not come forward with admissible evidence from which a reasonable factfinder could find arbitrariness, discrimination, or bad faith, disposition by summary judgment is appropriate. Bellesfield v. RCA Communications, Inc., 675 F. Supp. 952, 956 (D.N.J. 1987).
Here, plaintiff asserts that a reasonable factfinder could conclude that the union breached its duty of fair representation. As grounds, plaintiff cites four instances of what he characterizes as the union's bad faith in dealing with his arbitration request. (Pl. Br. in Opp'n at 10.) First, plaintiff points to the union's immediate acceptance of the employer's classification of his violation as "theft of time", a violation susceptible subject to immediate dismissal. Second, plaintiff states that the union ignored the successful arbitrations and reinstatements of two other employees, Phillip Martelli and Robert St. John, who were charged with "theft of time". Third, plaintiff alleges that the union did not adequately explain its decision not to arbitrate. Fourth, plaintiff alleges that the union improperly allowed the time for filing an arbitration action to expire without advising the plaintiff, thus denying him the opportunity to request that they reconsider their position. (Id.)
Although plaintiff has cogently stated his disagreement with the union's actions, he has not come forward with evidence of bad faith. With respect to plaintiff's argument that the union too-quickly accepted IBC's contention that plaintiff's actions constituted "theft of time", the record shows that the union reached its decision not to pursue arbitration after substantial consideration. Mr. Clements did advocate on plaintiff's behalf at the termination meeting, and decided only afterwards not to take plaintiff's grievance to arbitration. The plaintiff has admitted the expenditures of personal time while on the clock as alleged, and he had signed the employer's Time Card and Time Clock policy acknowledging that an employee may not attend to personal business while on the clock except during normal breaks or lunch hours, and that doing so will be regarded as stealing from the employer. (See note 2, supra.) The record shows that Mr. Clements discussed the matter with plaintiff, and with the union's attorneys, before coming to the conclusion that it would be a waste of union funds to attempt to overcome IBC's decision to fire plaintiff. In short, plaintiff had not shown that his union did not consider his complaints, nor that the union failed to explain to him its reasons for refusing to arbitrate. Plaintiff has shown only that he disagrees with the conclusions his union reached. This is not evidence of bad faith.
Next, plaintiff's argument that the union ignored two cases in which other Interstate Brands employees who were accused of "theft of time" successfully brought their claims to arbitration also fails. First, there is no evidence that the union ignored these cases. The fact that the union did not arbitrate this case does not give rise to the inference that the union affirmatively chose to blind itself to helpful precedent. In any event, the two cases plaintiff cites in support of his position are distinguishable from the present case. In the successfully arbitrated cases to which plaintiff refers, Mr. Martelli denied the allegations, and Interstate Brands could produce no evidence to prove that he had willfully stolen time. (Supp. Cert. of IBC Human Resource Manager Nancy Hudson ¶¶ 4-6 Ex. A.) In Mr. St. John's case, the arbitrator reversed IBC's dismissal because he found that IBC's time keeping regulations were inadequately explained to the employee. (Id. at ¶¶ 5-9.)
In this case, plaintiff admitted at his termination hearing that he had several personal conversations on company time, and that he understood the time keeping procedures. Moreover, plaintiff's admission is corroborated by undisputed evidence that the incident took place. IBC consulted with the union shop steward and heard from Mr. Clements, but nevertheless terminated Mr. Walczak. Based upon a record showing that IBC had fired 13 employees in the previous eight years for theft of time, and the union's previous lack of success in Mr. Fitzpatrick's case in attempting to challenge a dismissal for theft of just 12 minutes of company time, there were substantial grounds for the union to conclude that, because plaintiff had admitted to taking almost an hour to engage in personal conversations during these hours of his shift, the weakness of plaintiff's claim would have made arbitration a waste of scarce union resources.
In addition to the cases of Martelli and St. John, defendants point to the case of another IBC employee, Jude Fitzpatrick, who was discharged for theft of time after he took an unauthorized twelve minute break while on the clock. The union decided to arbitrate the claim, contending that IBC had exaggerated the amount of time in question and that Fitzpatrick was discharged because he was a strike captain. The arbitrator rejected both positions and upheld IBC's decision to terminate. (Id. ¶¶ 14-16 Ex. B.) There were 13 other union employees discharged for theft of time during the eight years leading up to plaintiff's complaint. (Id. ¶ 17.)
Plaintiff cites Riley v. Letter Carriers Local # 380, 668 F.2d 224, 228 (3d Cir. 1981), and Bellesfield and RCA Communications Inc., 675 F. Supp. 952, 955 (D.N.J. 1987), in support of the proposition that "a union is not free to ignore without reason a potentially meritorious grievance or to pursue that grievance in a perfunctory fashion." (Pl. Br. in Opp'n at 10.) Close reading of those decisions, however, shows that they do not support plaintiff's position. Riley involved a discharged employee who sued his union for breach of fair representation. The Riley court held that the union's behavior had been at most negligent, not arbitrary, discriminatory, or in bad faith, and thus the union had not breached its duty of fair representation. Riley, 668 F.2d at 229. Bellesfield involved a discharged employee who sued his employer and his union, alleging that the union breached its duty of fair representation. The Bellesfield court quoted Riley's language stating that a union is not free to ignore a potentially meritorious grievance without reason. However, the Bellesfield court went on to explain that the burden of proof that is required to demonstrate a breach of a union's duty of fair representation is high, and that the employee plaintiff had not adduced sufficient evidence to survive the summary judgment motion against his § 301 claim. Bellesfield, 675 F. Supp. at 956. In this instance, the record of previous discharges for "theft of time" was dismal. Fifteen employees terminated in eight years, of which only two won their jobs back due to mitigating facts not present here. Of the terminated employees, one employee had been discharged for just 12 minutes of personal business on the clock, as upheld by an arbitrator. The work rule itself may be harsh and even unrealistic in the workplace, but it is in writing and, from all appearances, has been uniformly applied to result in termination for employees who partake of personal business on the clock other than during breaks or lunch hours. The federal court is not empowered by the LMRA to second-guess the work rules that are enforced pursuant to the collective bargaining agreement, but it is in the Court's task to assure that the plaintiff's rights to fair representation under that contract have been satisfied. Here, no reasonable factfinder could conclude that the union acted contrary to its duty of fair representation in deciding no to take Mr. Walczak's grievance to arbitration.
The union's decision not to pursue arbitration does not constitute bad faith. Indeed, the holdings in Riley and Bellesfield suggest that a breach in a union's duty of fair representation requires egregious behavior not present in this case.
For the reasons explained above, plaintiff has not met his burden of adducing evidence tending to show bad faith or egregiousness in his union's refusal to arbitrate his termination. Therefore, plaintiff has not met his burden of demonstrating that the union breached its duty of fair representation.
2. Plaintiff must exhaust all internal union grievance procedures before pursuing his claim in federal court
Generally, a union member must exhaust all of his internal union remedies before he may raise a § 301 claim in federal court. "When a grievance procedure [applies], 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 his employer." Whittle v. Local 641, International Broth. of Teamsters, 56 F.3d 487, 490 (3d Cir. 1995). This requirement applies whether an employee has chosen to sue his employer, his union, or both. Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965). Exhaustion is required, in part, because the procedures prescribed by the collective bargaining agreement were themselves subject to the bargaining process. In Republic Steel the Court found that federal labor policy favored requiring employees to "afford the union the opportunity to act on [their] behalf." Id. at 653. Exhaustion was found to "complement the union's status as exclusive bargaining representative . . . [and] enhance the union's prestige with employees." Id. Thus, even though Mr. Walczak has not sues his union, he still must abide by the requirement that he exhaust his union's grievance procedures before proceeding in this court. However, the rule that a union worker must exhaust the union's internal grievance procedures before proceeding to federal court is not absolute.
In Clayton v. International Union, United Auto, Aerospace and Agr. Implement Workers of America, 451 U.S. 679 (1981), the Supreme Court held that if the grievance procedure contained no hope of solving a union member's problem, plaintiff could bypass the internal union procedures and proceed directly to federal court. In determining whether such a special situation exists, district courts should for the presence of three factors:
[F]irst, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301; and third whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim."Scott v. Local 863, International Broth. of Teamsters, 725 F.2d 226 (3d Cir. 1984) (quoting Clayton, 451 U.S. at 689 n. 1).
In this case, the Teamsters constitution provides that aggrieved employees are bound to exhaust all available union appellate remedies before bringing suit:
Every member . . . against whom charges have been preferred and disciplinary action taken as a result thereof, or against whom adverse rulings or decisions have been rendered or who claims to be aggrieved, shall be obliged to exhaust all remedies provided for in this Constitution.
(Teamster Constitution at 155, Ellert Cert. Ex. T.)
Plaintiff admits he has not exhausted the union's internal grievance procedures, but argues that he should be excused from this requirement for two reasons. First, plaintiff claims that he did not use the appeals process because the 14-day period of limitation expired too quickly for him to file exhaust the union appeal procedure. Second, plaintiff asserts that he was unaware of the International Brotherhood of Teamster's exhaustion procedures, and that the union erred when it did not inform him of his ability to take an appeal. Neither argument has merit.
The problem with plaintiff's first argument concerning the 14-day time bar is that the fourteen day period in the collective bargaining agreement does not refer to a time limit within which a plaintiff must bring an arbitration action. (CBA Art. 15, Ellert Cert. Ex. P.) On the contrary, the fourteen day period is the time that must pass before arbitration may be sought. Page 11 of the CBA states: "If the foregoing procedure shall fail to result in an agreement upon the adjustment of the grievance or dispute within fourteen (14) days, the matter shall be submitted to an arbitrator who shall be chosen by the parties." (Ellert Cert. Ex. P at 11.) The plain language of the agreement shows that there was no fourteen day time bar. Therefore, plaintiff still could have accessed the appeals process, which might have succeeded in restoring plaintiff to his position. As a result, plaintiff's invocation of theClayton exception which allows a § 301 claim to be litigated in federal court without exhaustion if the grievance procedure could not have gained the relief he sought is misplaced.
The Court also rejects plaintiff's argument that he did not know of the Teamsters Constitution or bylaws, and that the union was bound to tell him of his right to appeal. Plaintiff had consulted with his present counsel on or about June 7, 1998, only a few weeks after the union advised plaintiff that it would not seek arbitration. (Walczak Dep. at 18:2-6.) Plaintiff's counsel understood that there were contractual remedies yet to be exhausted, as evidenced by his statement that "in almost all § 301 cases filed by employees, the employer raises as a defense the employee's failure to exhaust". (Pl. Br. in Opp'n at 8.) There is no evidence that defendants attempted to obscure the fact that plaintiff could file for appellate relief. If plaintiff was unaware of his contractual obligation to exhaust all available remedies, then counsel should have informed plaintiff of this prerequisite to filing suit.
In sum, there is no evidence of bad faith, that the union intentionally misinformed plaintiff about his appellate rights, or that union employees were so hostile to plaintiff that he could not hope to obtain a fair hearing. Consequently, plaintiff was required to exhaust available internal remedies before bringing his § 301 claim in this Court. Having failed to exhaust, plaintiff's § 301 claim does not survive summary judgment.
CONCLUSION
For reasons stated above, plaintiff has not demonstrated that the union breached its duty of fair representation. Plaintiff has also failed to demonstrate that he exhausted his union's internal grievance procedures, nor that the union's conduct excused the exhaustion requirement. As a result, plaintiff has failed to create a triable issue with respect to his claims arising under LMRA § 301. Because summary judgment will be entered against the sole federal cause of action in this case, the Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3).
O R D E R
THIS MATTER having come before the Court on defendants' motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and the Court having considered the parties' submissions;
IT IS this day of September, 2000 ORDERED as follows:
1. Plaintiff's Counts II, IV and V are voluntarily DISMISSED ;
2. Defendants' motion for summary judgment as against plaintiff's claims arising under LMRA § 301 is GRANTED and judgment is ENTERED against plaintiff's Count III;
3. The Court having entered judgment against plaintiff's sole federal cause of action, this Court declines to exercise supplemental jurisdiction over the remainder of this case pursuant to 29 U.S.C. § 1367(c)(3);
4. The remainder of plaintiff's complaint is REMANDED to New Jersey Superior Court, Law Division, Camden County, Docket No. L-08603-98.