                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2006

Bullock v. Dressel
Precedential or Non-Precedential: Precedential

Docket No. 05-1573




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1674


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                                                   Precedential

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-1573


      JAMES C. BULLOCK; JAMES UMBENHAUER;
        CHARLES L. VOORHIES; RICKEY WARD,
                              Appellants

                              v.

          RICHARD DRESSEL; INTERNATIONAL
            BROTHERHOOD OF ELECTRICAL
            WORKERS LOCAL UNION NO. 164


APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF NEW JERSEY
               (D.C. Civil No. 02-cv-02758)
   District Judge: The Honorable Dennis M. Cavanaugh


                 Argued: November 16, 2005


 Before: BARRY and AMBRO, Circuit Judges, and POLLAK,*
                     District Judge


               (Opinion Filed: January 17, 2006)




      *
         The Honorable Louis H. Pollak, District Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
George P. Fisher, Esq. (ARGUED)
3635 South West Dosch Road
Portland, OR 97239

John A. Stone, Esq.
Edwards & Caldwell
1600 Route 208 North
P.O. Box 23
Hawthorne, NJ 07507

Counsel for Appellants


Gary A. Carlson, Esq. (ARGUED)
Kroll Heineman Giblin
99 Wood Avenue South
Metro Corporate Campus 1
Suite 307
Iselin, NJ 08830

Counsel for Appellees



                  OPINION OF THE COURT


BARRY, Circuit Judge

       The District Court granted defendant Local 164's motion
for summary judgment on plaintiffs’ claim under § 101(a)(5) of
the Labor Management Reporting and Disclosure Act of 1959
(“LMRDA”), 29 U.S.C. § 411(a)(5), their claim for breach of the
duty of fair representation, and their state law defamation claims.
Plaintiffs, now appellants herein, are four members of other local
unions under the umbrella of the International Brotherhood of
Electrical Workers (“IBEW”) who worked as “travelers” at
Local 164. The District Court had jurisdiction over the federal
claims pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. §
1367. We have appellate jurisdiction under 28 U.S.C. § 1291.

                                2
We will affirm in part and reverse in part.

        Because we have before us only issues of law, we will set
forth only those facts necessary to inform decision on the legal
issues. In March 2001, Local 164 referred appellants to work for
Guzzo Electric at a project at Newark Liberty International
Airport. On June 5, after experiencing problems with both Local
164 and Guzzo, appellants and twenty-six of their fellow
“travelers” working at the project signed a letter addressed to
Lawrence E. Rossa, the Vice-President for IBEW’s third district,
which encompasses Local 164. In that letter (the “Travelers’
letter”), the thirty men expressed their concerns regarding (1)
Guzzo’s late payment of the workers’ benefit contributions; (2)
late payments on scheduled pay days; and (3) Local 164’s
refusal to provide the workers a copy of the collective bargaining
agreement.

         Rossa received the letter on June 6, 2001 and sent a copy
to appellee Richard Dressel, who, as business manager, was
responsible for the daily operation of Local 164, including its
hiring hall. Dressel responded on June 7, 2001 with an angry
letter to the business managers of the local unions where the
thirty men were members. In that letter, Dressel first threatened
that if any of the thirty men who signed the Travelers’ letter quit
the Guzzo job, “they will not be referred again from 164 . . . .”
Second, “if they do quit,” Dressel wrote, “I will fax their names
and card numbers to all my sister locals in New Jersey and
southern New York and Local 3.” Third, Dressel stated that
their “actions have now forced me to suspend the referral for
ALL traveling Brothers of the IBEW for at least a one month
period . . . I will not allow this situation to get out of hand
whereby a few trouble makers are attempting to have the ‘tail
wag the dog’.” (App. 750-51.) Finally, Dressel told the
business managers, “[p]lease do me a favor. Keep your problem
members at home and deal with them. These ‘Brothers’ are not
welcomed here.” (App. 750-51.) Attached to this letter was a
list of the names and IBEW membership numbers of each
signatory to the Travelers’ letter.

       Appellants claim that Dressel’s letter became generally
available at their workplace and that they faced hostility from

                                 3
other union members. Additionally, they point out that Local
164’s records show the number of its hiring hall’s job referrals
of travelers dropped off markedly during the month after
Dressel’s letter. Appellants claim that Local 164 and Dressel
engaged in improper discipline in violation of § 101(a)(5) of the
Labor Management Reporting and Disclosure Act of 1959
(“LMRDA”), 29 U.S.C. § 411(a)(5), by doing what was
threatened in the Dressel letter in retaliation for their letter and
by blacklisting them. They claim, as well, that they were
defamed by the Dressel letter.

I. LMRDA § 101(a)(5) Claim

       Section 101(a)(5) of the LMRDA states that
       [n]o member of any labor organization may be
       fined, suspended, expelled, or otherwise
       disciplined except for nonpayment of dues by such
       organization or by any officer thereof unless such
       member has been (A) served with written specific
       charges; (B) given a reasonable time to prepare his
       defense; (C) afforded a full and fair hearing.

29 U.S.C. § 411(a)(5) (emphasis added).

       The District Court concluded that Dressel and Local 164
did not violate § 101(a)(5) because the Act is only implicated by
discipline authorized by the union and the Dressel letter
“amounts to no more than a threat of ad hoc retaliation by a
union officer who was upset with the manner in which the
travelers dealt with their grievances” (App. 10). We agree.

       In Breininger v. Sheet Metal Workers Int’l Ass’n Local
Union No. 6, 493 U.S. 67, 91 (1989), the Supreme Court defined
“otherwise disciplined” narrowly to encompass “only
punishment authorized by the union as a collective entity to
enforce its rules,” and not any “act[] that deter[s] the exercise of
rights protected under the LMRDA.” The Court noted that
because “otherwise disciplined” immediately succeeds an
enumerated list of punishments that “imply some sort of
established disciplinary process,”—namely, fines, suspension
and expulsion—“Congress meant ‘discipline’ to signify penalties

                                 4
applied by the union in its official capacity rather than ad hoc
retaliation by individual union officers.” Id. at 91-92 & 92 n.15.
Additionally, the Court pointed out that by its terms § 101(a)(5)
provides procedural due process protections (such as a “full and
fair hearing”) that are intended to “safeguard [ ] against
improper disciplinary action,” and that “would not apply to
instances of unofficial, sub rosa discrimination.” Id. at 92 (first
emphasis added).

        The petitioner in Breininger claimed that his local
violated § 101(a)(5) because its business manager and business
agent refused to refer him for employment due to his political
support for one of their rivals. The Court held that he had failed
to “allege acts by the union amounting to ‘discipline’” since he
“was not punished by any tribunal, nor was he the subject of any
proceedings convened by [the union].” Id. at 94. Instead, he
only claimed to be “the victim of the personal vendettas of two
union officers,” and, thus, § 105(a)(5) was not implicated. Id.

       We do not imply that “discipline” may be defined
       solely by the type of punishment involved, or that
       a union might be able to circumvent []§ 101(a)(5) .
       . . by developing novel forms of penalties different
       from fines suspensions, or expulsions. Even
       respondent acknowledges that a suspension of job
       referrals through the hiring hall could qualify as
       “discipline” if it were imposed as a sentence on an
       individual by a union in order to punish a violation
       of union rules.

Id. at 92 n.15.

      We applied this distinction in Brenner v. Local 514,
United Bhd. of Carpenters & Joiners, 927 F.2d 1283 (3d Cir
1991). In Brenner, plaintiffs filed a LMRDA § 6091 claim


       1
        Both § 609 – 29 U.S.C. § 529 – and § 101(a)(5) contain the
phrase “otherwise discipline,” and both usages have the identical
meaning. Finnegan v. Leu, 456 U.S. 431, 438 n.9 (1982). Section
609 reads:

                                 5
against their union, their local, and the local’s business agent,
alleging that the business agent, who administered the local’s
hiring hall, “disciplined” them by failing to refer them for
employment in retaliation for their political opposition to the
agent and his allies in the union. We affirmed the District
Court’s grant of summary judgment, holding that, as in
Breininger, the plaintiffs had “failed to allege acts by the union
acting in its official capacity and instead raised only ad hoc
retaliations by the individual union official.” Id. at 1297.

        Although there can be a fine line between “discipline”
and non-“discipline,” we are not without guidance in this area.
First, the suspension of job referrals by a hiring hall can qualify
as “discipline,” just as can a fine, suspension or expulsion.
Breininger, 493 U.S. at 92 n.15. Second, the purpose of
discipline must be to “enforce [the union’s] rules,” id. at 91, or
to “punish a violation of union rules,” as opposed to engaging in
“ad hoc retaliation,” id. at 92 n.15, motivated by “personal
vendettas” such as a business agent’s anger over a member’s
political views. Id. at 94. Third, the punishment must be
“authorized by the union,” id. at 91, or carried out by the union
in its “official capacity,” id. at 92 n.15, through “some sort of
established disciplinary process,” id. at 92, such as being the
subject of a “tribunal” or of “proceedings” conducted by the
union. Id. at 94.

       Here, appellants assert types of punishment that could be
considered “discipline” within the meaning of the Act, namely
that Dressel and Local 164 suspended their job referrals and
blacklisted them. There is no indication in the record, however,


       It shall be unlawful for any labor organization, or
       any officer, agent, shop steward, or other
       representative of a labor organization, or any
       employee thereof to fine, suspend, expel, or
       otherwise discipline any of its members for the
       exercising of any right to which he is entitled under
       the provisions of this Act.

29 U.S.C. § 529 (emphasis added).

                                 6
that Dressel’s actions had the purpose of enforcing the union’s
rules, or of punishing a violation of those rules. There is no
union rule that the Travelers’ letter violated; in fact, airing their
dissatisfaction with Local 164 was an exercise of appellants’
right to “express any views, arguments, or opinions” under §
101(a)(2). (App. 28.) Appellants acknowledge that the letter
was not a formal complaint, but merely a request for assistance
to Rossa. Retaliating against the authors of an informal
complaint letter is not the enforcement of union rules.

        Even assuming that Dressel did everything he threatened
to do in the June 7, 2001 letter, these acts did not rise to the level
of formality the Supreme Court has required for them to have
been punishment “authorized by the union” or carried out by the
union in its “official capacity.” Dressel’s refusal to refer the
appellants, and mailing of a list of their names to other locals’
managers in order to “blacklist” them, does not resemble “some
sort of established disciplinary process,” nor did it make
appellants the subject of a union “tribunal” or “proceeding”
through which they could claim they were denied the procedural
due process required by § 101(a)(5). Other courts of appeals
have placed heavy reliance on this factor. See, e.g., United Food
and Commercial Workers Int’l Union Local 911 v. United Food
and Commercial Workers Int’l Union, 301 F.3d 468, 473-74 (6th
Cir. 2002) (holding that retaliatory reassignment of plaintiff was
not “discipline” because it “did not result from an established
union disciplinary process”).

        Appellants argue that summary judgment was
inappropriate because there are material questions of fact as to
whether Dressel’s conduct was authorized union conduct, and
stress that their complaint alleges conduct by the union as an
entity, not just conduct by Dressel. They argue that Dressel
“makes decisions about referrals as the expression of Local
164’s authority and interests,” (Appellants Br. 27-28), and that
referrals for all experienced travelers were halted in retaliation
for the Travelers’ letter, not just referrals for the thirty travelers,
thus demonstrating that his actions were “in fact a collective
policy statement by Local 164.” (Appellants Br. 28-29.)

       As the First Circuit explained in rejecting a nearly

                                   7
identical argument:

       [T]he analysis set forth in Breininger is concerned
       less with the cast of the union member’s complaint
       — the extent to which it characterizes the Union’s
       actions as collective and official — than with the
       nature of the Union’s conduct. Plaintiff has failed
       to allege, much less demonstrate, that the Union as
       a body in a proceeding formal or informal,
       deliberately voted to misrepresent the status of his
       grievance.

Linnane v. General Electric Co., 948 F.2d 69, 72 (1st Cir. 1991)
(emphases added). Here, even assuming that Dressel was
authorized to act on Local 164’s behalf in administering
referrals, and further assuming that he intended his retaliation to
affect all experienced travelers and not just the Travelers’ letter
signatories, appellants have failed to allege or demonstrate that
the union as an entity, through some kind of proceeding, formal
or informal, punished them in response to their letter. They
were, it is clear, merely the victims of an “ad hoc retaliation by
[an] individual union officer[],” see Breininger, 493 U.S. at 92
n.15, and were not “disciplined” within the meaning of §
101(a)(5). Thus, the District Court correctly granted summary
judgment for Dressel and Local 164 on the § 101(a)(5) claim.

II. Duty of Fair Representation Claim

       The District Court dismissed appellants’ claim that
Dressel and Local 164 breached their duty of fair representation
(“DFR”) as time barred by the six-month statute of limitations
for charges of unfair labor practices under § 10(b) of the
National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b).
The Court found that appellants’ claim accrued in mid-June
2001, when it was reasonable that they would have become
aware of the June 7, 2001 Dressel letter. Appellants filed their
complaint on June 7, 2002, approximately one year after their
claim accrued.

      Appellants argue that the District Court erred in
dismissing their claim because the six-month statute of

                                 8
limitations was tolled while they pursued internal union
remedies by writing their July 31, 2001 letter to Rossa charging
that Dressel violated the IBEW constitution. Dressel and Local
164 counter that appellants failed to exhaust their remedies and,
as a result, failed to toll the limitations period because they were
required to file a complaint with the CBA-established Local 164
Appeals Committee, not with the IBEW.

        Thus, the parties would have us address (1) whether
appellants properly exhausted their internal union remedies
before bringing suit, and assuming that they did, (2) whether
exhausting their remedies tolled the § 10(b) six-month statute of
limitations.

        First, a plaintiff must exhaust his or her internal union
remedies before bringing a claim against a union for breach of
the duty of fair representation. Goclowski v. Penn Cent. Transp.
Co., 571 F.2d 747, 757 (3d Cir. 1977). Appellants did so. They
pursued their remedies before the IBEW in good faith. Indeed,
there is no evidence that appellants had any motive other than to
have a detached, higher authority address their grievance with
Dressel and Local 164, and the IBEW did just that. It sent a
representative to meet with appellants to address their charges,
held a hearing on the charges, and rejected the charges in a
report dated June 26, 2002. There was never any indication
from the IBEW that appellants, by presenting their appeal
directly to the IBEW rather than first going to the Appeals
Committee, were in the wrong forum, or that they had erred in
any other respect in pursuing relief in this manner. See Grasty v.
Amalgamated Clothing & Textile Workers Union, 828 F.2d 123
(3d Cir. 1987). To now hold that appellants are barred from
seeking judicial relief when they followed a legitimate method
of resolving the dispute within the union would subvert the
“national labor policy of encouraging workers to pursue internal
union remedies while ensuring them a judicial forum in which to
resolve disputes.” See Frandsen v. Bhd. of Ry., Airline, and S.S.
Clerks, Freight Handlers, Express and Station Employees, 782
F.2d 674, 681 (7th Cir. 1986).

      Second, it is premature to address the tolling argument
because the parties and the District Court incorrectly used as

                                 9
their base the six-month federal statute of limitations when they
should have borrowed an analogous state statute under which
appellants’ DFR claim may well have been timely. Although
this issue was not raised before the District Court and was not
briefed by the parties on this appeal, we have the discretion to
consider an issue that was waived where “refusal to reach [it]
would result in a miscarriage of justice or where the issue’s
resolution is of public importance.” Bagot v. Ashcroft, 398 F.3d
252, 256 (3d Cir. 2005) (internal quotations omitted). We have
such a situation here.

        Labor organizations owe an implied statutory duty of fair
representation to their members under the NLRA, 29 U.S.C. §
151 et seq. Breininger, 493 U.S. at 73. A union member will
often assert a claim for breach of the DFR in combination with a
claim against his or her employer under § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185, for
breach of a collective-bargaining agreement, i.e., a so-called
“hybrid” claim. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 164-65 (1983). The Supreme Court held in DelCostello
that the six-month statute of limitations found in § 10(b) of the
NLRA for unfair labor practice charges applies to a hybrid
action despite the general rule that federal courts apply the most
closely analogous state statute of limitations to federal laws that
fail to specify their own limitations period. The Court reasoned
that the highly “interdependent” rights asserted in hybrid §
301/DFR claims were often identical to those asserted in unfair
labor practice charges, and specifically cited the “family
resemblance” between unfair labor practices and breaches of the
DFR. Id. at 164, 170. Additionally, the Court found that the
federal interest in “stable bargaining relationships and finality of
private settlements” underlying § 10(b) was equally applicable to
hybrid claims, which, like unfair practice charges, also involve
the “employee’s interest in setting aside the ‘final and binding’
determination of a grievance through the method established by
the collective-bargaining agreement.” Id. at 171.

        Despite this “closely circumscribed” exception, the Court
has stressed since DelCostello that analogous state statutes of
limitations should be used for federal laws “unless they frustrate
or significantly interfere with federal policies.” Reed v. United

                                10
Transp. Union, 488 U.S. 319, 327 (1989). Thus, in Brenner, we
held that § 10(b)’s six-month limitations period does not apply to
a DFR claim against a union when asserted without a
corresponding claim against an employer for breach of a
collective bargaining agreement because the federal “interest in
the rapid resolution of labor disputes does not outweigh the
union member’s interest in vindicating his rights, when . . . a
dispute is entirely internal to the union.” 927 F.2d at 1295. In
light of Reed, it was not enough, we said, that the plaintiffs’ lone
DFR claim bore a “family resemblance” to an unfair labor
practice charge, or that the DFR claim was asserted as a § 301
violation. Id. Because the plaintiffs were only asserting that
their union wrongfully refused to refer them from its hiring hall,
the dispute had “no more than an indirect influence on the
union’s ability to negotiate effectively with those employers who
hire [union members] through the hiring hall,” and, thus,
DelCostello was inapposite. Id. We remanded the DFR claim
for an application of the appropriate state statute of limitations.
Id.

        Here, just as in Brenner, appellants only claim that their
union violated its DFR by refusing to refer them through its
hiring hall and by its other retaliatory actions.2 Because they
assert no claim against Guzzo or any other employer, this case
involves a dispute “entirely internal to the union” where the
federal “interest in the rapid resolution of labor disputes does not
outweigh the union member’s interest in vindicating his rights.”
Id. Thus, the most closely analogous New Jersey statute of
limitations applies, not the six-month period of § 10(b).

      The District Court was correct to hold that appellants’
DFR claim accrued in mid-June 2001, when they would have
reasonably become aware of the June 7, 2001 Dressel letter
because this is “when the plaintiff[s] kn[e]w[] or reasonably
should [have] know[n] of the acts contributing to the union’s
wrongdoing in failing to adequately represent [their] interests.”


       2
       In fact, unlike Brenner, appellants do not even assert a §
301 claim against the union, which further removes these facts
from the hybrid scenario justifying the DelCostello exception.

                                11
See Podobnik v. United States Postal Serv., 409 F.3d 584, 593
(3d Cir. 2005). Whether their June 7, 2002 DFR claim was filed
in a timely fashion, however, will have be determined by the
District Court on remand after it chooses the most analogous
state statute of limitations. If, after that, appellants’ claim is
deemed untimely, the tolling argument they now seek to assert
will be ripe for adjudication.

        Therefore, we will vacate that part of the District Court’s
order finding the DFR claim to be untimely and remand for a
determination of the appropriate state statute of limitations. If,
on remand, it is determined that the DFR claim was timely, the
state law claims should be reinstated. See 28 U.S.C. § 1367.




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