                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2009

Richard Nicol v. United Steelworkers
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4017




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"Richard Nicol v. United Steelworkers" (2009). 2009 Decisions. Paper 1233.
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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                  ___________

                                  No. 08-4017
                                  ___________

                RICHARD NICOL; PAUL E. DEPPENBROOK,
                on behalf of local 9305-04 Beaver Falls Members,
                                                        Appellants

                                        v.

                  UNITED STEELWORKERS OF AMERICA
                             ___________

                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 04-cv-01162)
              District Judge: The Honorable David Stewart Cercone
                                   ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 21, 2009

          Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.


                              (Filed: June 4, 2009)

                                  ___________

                           OPINION OF THE COURT
                                ___________


NYGAARD, Circuit Judge.
       Richard Nicol and Paul Deppenbrook appeal, on behalf of Local 9305-04 Beaver

Falls members of the United Steelworkers of America, the District Court’s grant of

summary judgment in favor of the United Steelworkers of America on claims of fraud

and breach of fiduciary duty. Because our opinion is wholly without precedential value,

and because the parties and the District Court are familiar with its operative facts, we

offer only an abbreviated recitation to explain why we will affirm the order of the

District Court.

       Nicol and Deppenbrook were employed by Republic Technologies International.

Republic employed more than 4,000 members of the United Steelworkers’ Union. Their

employment was governed by the terms of a 1998 Master Agreement. Republic also

participated in a defined benefit plan for its employees.

       Republic filed for bankruptcy under Chapter 11 on April 2, 2001. The Union and

Republic negotiated a Modified Labor Agreement for the purpose of preventing Republic

from seeking a vacation of the Master Agreement in bankruptcy court. The Modified

Agreement altered wages, as well as pension and health benefits. It also memorialized the

Union’s cooperation in Republic’s application for an emergency loan from the Federal

government, known as a “Byrd Bill Loan.” Republic never applied for the loan, but the

record does not contain any evidence that the Union was in any way responsible for this.

Appellant Nicol, as chairman of the union Local, was part of the negotiating committee.




                                              2
Union membership ratified the modification on January 24, 2002. The bankruptcy court

also approved the agreement.

       In April 2002, Republic agreed to sell its assets to an entity known as Newco. A

Union official negotiated an agreement with Newco dealing with the effects of the sale to

the entire Union membership, since approximately 1,500 jobs were to be cut. The

agreement provided for certain enhanced retirement benefits, and also declared that the

contemplated sale of Republic’s assets and facilities to Newco would constitute a

“shutdown” as of the date of the sale and transfer, which was August 16, 2002.

“Shutdown” is a term of art that, in this context, enabled eligible members to take an early

retirement, regardless of whether the proposed sale actually happened, and irrespective of

whether suitable long-term employment was available.

       The shutdown agreement was not submitted to Union membership for ratification,

but it is uncontested that the Union’s constitution empowered the Union official to

negotiate plant closing agreements, and that it did not require a vote by the membership

for this type of agreement. The bankruptcy court approved the shutdown.

       Following the Beaver Falls plant closure, the Union terminated the Beaver Falls

unit of the Union. It is uncontested that the Union did so in accord with its constitution

and routine practice.

       The Pension Board Guaranty Corporation assumed the obligation of paying the

retirement benefits of Republic employees, and it ultimately blocked Republic employees’



                                             3
ability to claim any of the negotiated shutdown benefits. The record is clear that the

Union did not bear any responsibility for this result.

       On October 25, 2002, Deppenbrook filed unfair labor charges with the National

Labor Relations Board against the Union. He claimed the Union breached its duty of fair

representation in connection with the shutdown of the Republic Beaver Falls facility at

which he worked. Nicol filed an unfair labor practices complaint with the Board against

only Republic. The Board dismissed both complaints for insufficient evidence on

February 28, 2003. Nicol and Deppenbrook filed the instant action on August 5, 2004.

                                              I.

       The complaint raises claims based upon the Master Agreement, the Modified

Labor Agreement, the shutdown agreement, the sale of the Republic Beaver Falls facility

and the actions of the Union with respect to the Local following the sale. While Nicol

and Deppenbrook make much of their use of the terms “fraud” and “breach of fiduciary

duty” under state law, their complaint raises quintessential claims of breach of fair

representation. For this reason, the District Court correctly found that the two causes of

action in this suit are governed by Section 301 of the Labor Management Relations Act,

29 U.S.C. §185, and that the six-month statute of limitations provided for claims to the

Board under Section 10(b) of the National Labor Relations Act 29 U.S.C. §160(b) should

apply here. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 169-72 (1983);

accord Sisco v. Consolidated Rail Corp., 732 F.2d 1188 (3d Cir.1984).



                                              4
       Moreover, this six-month statutory period begins “when the claimant discovers, or

in the exercise of reasonable diligence should have discovered the acts constituting the

violation.” Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990). In this case,

the District Court properly determined that the claimants had knowledge of the claims

brought in the instant lawsuit on October 25, 2002 when they filed complaints with the

National Labor Relations Board. The identity of the claims before the Board and before

this Court is undeniable. Therefore, the fact that Nicol and Deppenbrook filed the instant

complaint on August 5, 2004, inexorably leads to the conclusion that the instant lawsuit is

time-barred.

                                              II.

       Moreover, after our own independent review of the record, we do not find any

error in the District Court’s conclusion that, notwithstanding the statute of limitations bar,

Nicol and Deppenbrook utterly failed to raise any material question of fact in opposition

to the Union’s motion for summary judgment. The record does not raise even a

reasonable inference to support a jury’s conclusion that the Union acted in a wholly

irrational manner. The record amply supports the District Court’s conclusion that the

Union did not breach its duty of fair representation.




                                             III.




                                              5
      For the above stated reasons, we affirm the District Court’s grant of summary

judgment in favor of the United Steelworkers of America.




                                           6
