the violations were "continuing" (Item 19, Ex. G).
By letter dated March 27, 1992 from J.J. Parola, DHC's Chief Engineer, plaintiff's counsel was advised that plaintiff's grievance had been denied for failure to comply with Rule 24.1 of the collective bargaining agreement. Rule 24.1 requires presentation of a claim or grievance within sixty days of the events giving rise to the claim (Item 14, Ex. 13, p. 34). The letter stated that since plaintiff's name was removed from the Susquehanna subdivision roster "on or about October 19, 1991," he would have had to file his grievance by December 19, 1991. The letter also stated that "nothing in the Collective Agreement allows an employee to maintain seniority on two rosters. Any rights [plaintiff] may have had under any prior collective agreements are no longer in effect" (Item 19, Ex. H).
On May 18, 1992, plaintiff appealed the denial of his grievance (Item 19, Exs. I, J). On June 18, 1992, the appeal was denied by Thomas F. Waver, DHC's General Manager of Operations & Maintenance (Item 19, Ex. K). Plaintiff took no further steps to pursue his grievance.
On October 20, 1992, plaintiff filed this action under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and the Railway Labor Act, 45 U.S.C. § 151 et seq., against DHC for "unlawful and discriminatory deprivation of employment" and against BMWE for breach of its duty of fair representation (Item 1, P 1). On March 29, 1993, plaintiff filed an amended complaint which deleted the allegation of jurisdiction under LMRA § 301 but remained unchanged in all other respects (Item 9).
Defendants move for summary judgment on the grounds that plaintiff has failed to demonstrate breach of the collective bargaining agreement by DHC or breach of the duty of fair representation by BMWE. Defendants also move to dismiss the complaint as time-barred by the six-month statute of limitations applicable to "hybrid" breach of contract/breach of duty of fair representation claims. Finally, defendants move to dismiss based on plaintiff's failure to exhaust either his internal union remedies or the administrative remedies available to him under the Railway Labor Act.
I. Summary Judgment.
Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "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). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, U.S. , 112 S. Ct. 152 (1991).
Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. AnnTaylor, Inc., supra, 933 F.2d at 167.
II. Exhaustion of Remedies Under the Railway Labor Act.
Plaintiff's claim against DHC arises under the Railway Labor Act. That Act is designed to resolve minor disputes between railroad employees and their employers through arbitration. See 45 U.S.C. § 153 First(i); Crusos v. United Transportation Union, Local 1201, 786 F.2d 970, 971-72 (9th Cir.), cert. denied, 479 U.S. 934, 93 L. Ed. 2d 361, 107 S. Ct. 409 (1986). § 153 First(i) provides:
The disputes between an employee . . . and a carrier . . . growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the [National Railroad] Adjustment Board ["NRAB"] with a full statement of the facts and all supporting data bearing upon the disputes.
A dispute between a railroad and an employee over the meaning of the provisions of the collective bargaining agreement dealing with seniority rights is a "minor dispute" within the exclusive jurisdiction of the NRAB. See, e.g., Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1190-91 (3d Cir. 1984). Such disputes are subject to compulsory and binding arbitration before the NRAB (or before an adjustment board established by the employer and the union representing the employees), and the board's jurisdiction to resolve them is primary and exclusive. Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 303-04, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989); Railway Labor Executives' Association v. Chesapeake Western Railway, 738 F. Supp. 1544, 1550 (E.D.Va.), aff'd in relevant part, 915 F.2d 116 (4th Cir. 1990), cert. denied, 499 U.S. 921 (1991). Ordinarily, therefore, the federal district court would not have subject matter jurisdiction to consider seniority rights claims by an employee against an employer subject to the Railway Labor Act, like the claims made by plaintiff here. Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 325, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972); Trial v. Atchison, Topeka & Santa Fe Railway Co., 896 F.2d 120, 123 (5th Cir. 1990).
An exception to the exclusive jurisdiction of the NRAB exists when the employee has not only a dispute with the employer involving interpretation of the collective bargaining agreement, but also a claim against the union for breach of the duty of fair representation. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 328-29, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969); Trial v. Atchison, Topeka & Santa Fe, supra; Fechtelkotter v. Air Line Pilots Ass'n, 693 F.2d 899, 903 (9th Cir. 1982). This is because the Railway Labor Act does not provide the NRAB with jurisdiction over employee-union disputes. See Czosek v. O'Mara, 397 U.S. 25, 25 L. Ed. 2d 21, 90 S. Ct. 770 (1970); Richins v. Southern Pacific Co., 620 F.2d 761, 762-63 (10th Cir. 1980), cert. denied sub nom. Brotherhood of Railway Carmen of U.S. & Canada v. Richins, 449 U.S. 1110, 101 S. Ct. 918, 66 L. Ed. 2d 838 (1981). Here, plaintiff claims that the union refused to support him in his attempt to maintain his standing on the Susquehanna subdivision seniority roster (Item 9, PP 14-15). He also claims that one of his union representatives, David Jordan, stood to benefit directly from plaintiff's removal from the Susquehanna roster and in fact filed one of the written protests against him.
However, a railroad employee cannot circumvent the exhaustion of administrative remedies requirement of the Railway Labor Act simply by alleging breach of the duty of fair representation on the part of the union. Andrews v. Louisville & Nashville, supra; Rader v. United Transportation Union, 718 F.2d 1012, 1014 (11th Cir. 1983). The Rader case holds that the Supreme Court's decision in Andrews requires an exhaustion of the remedies provided by the Railway Labor Act prior to bringing a federal court action against the railroad for breach of the collective bargaining agreement and against the union for breach of its duty of fair representation, "without exception...." Rader v. United Transportation Union, supra (emphasis added).
Rader involved a railroad employee's claim for reinstatement of seniority rights, similar to plaintiff's claim here. The employee had filed a grievance with the company, but did not pursue the grievance any further after the union refused to support his claim. Instead, he filed an action in federal court against the railroad for breach of the collective bargaining agreement and against the union for breach of the duty of fair representation. He claimed that the union's refusal to pursue his grievance was evidence that the union and the railroad had conspired to deprive him of his seniority rights.
The Eleventh Circuit found this claim insufficient to excuse the employee's failure to exhaust the administrative remedies provided in the Railway Labor Act since that statute "allows an employee to process a claim to the National Railway Adjustment Board without the concurrence of the Union . . .." Radar v. United Transportation Union, supra; 45 U.S.C. § 153, First (i) and (j). Thus, the employee's failure to pursue his grievance against the company without the union's help, combined with his failure to exhaust internal union remedies as required by Clayton v. United Automobile, Aerospace, and Agricultural Implement Workers, 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981), was fatal to his federal court action.
Similarly, in Oliver v. Local No. 1261 United Transportation Union-Enginemen & Southern Railway Co., 587 F. Supp. 3 (N.D.Ga. 1984), a railroad employee sought to regain seniority rights which he voluntarily relinquished upon transfer to a new division. The union filed a grievance on his behalf. When the grievance was denied by the railroad, the union filed an appeal. After denial of the appeal, the union refused to pursue the grievance any further.
Instead of appealing the grievance himself, or appealing the union's decision not to take the grievance to arbitration, the employee sued the union and the railroad in federal court for breach of the duty of fair representation and breach of the collective bargaining agreement. The district court found that the employee's failure to pursue his remedies against the company before the NRAB, combined with his failure to pursue internal union remedies, barred his federal court action against the railroad and the union. Id. at 46.
The Second Circuit does not interpret the requirements of the Railway Labor Act, or the holding in Andrews, as restrictively as the Eleventh Circuit did in Rader. For example, in Schum v. South Buffalo Railway Co., 496 F.2d 328 (2d Cir. 1974), the court recognized the following situations in which a federal court action could be brought by a railroad employee despite failure to exhaust collective bargaining or Railway Labor Act remedies: (1) when the employer repudiates the private grievance machinery, (2) if the union breaches its duty of fair representation, (3) where the administrative remedies would be wholly futile, and (4) where the union's actions prevent the employee from bringing his or her claim before the NRAB. Id. at 330-32; see also Childs v. Pennsylvania Federation Brotherhood of Maintenance Way Employees, 831 F.2d 429 (3rd Cir. 1987) (adopting Shum's recognition of fourth exception to exhaustion requirement).
In this case, there is no indication that the railroad wrongfully repudiated the grievance process. The railroad denied plaintiff's grievance as untimely filed, and also found nothing in the collective bargaining agreement allowing an employee to maintain seniority on two subdivision rosters. When this denial was upheld on appeal, it was plaintiff who repudiated the process by failing to seek arbitration before the NRAB. Plaintiff contends that to do so would have been futile because the NRAB is made up of railroad and union officials hostile to his seniority claim. However, as the railroad points out, the membership of the NRAB is selected by all carriers (not just DHC) and all unions (not just BMWE). See 45 U.S.C. § 153 First (a), (h). Plaintiff has failed to show that the current membership of the NRAB contains only members selected by DHC and BMWE, or how the NRAB members might otherwise be hostile to him.
Plaintiff has also failed to show how the union breached its duty of fair representation. In order to prove a breach of the duty of fair representation, the employee must show that the union's conduct was "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Haerum v. Air Line Pilots Ass'n, 892 F.2d 216, 221 (2d Cir. 1989). Plaintiff complains that the union refused to process his grievance, "and was in fact supportive of the company position" relative to his claim (Item 9, P 14). However, while it "may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion," Vaca v. Sipes, supra, 386 U.S. at 191, the union is under no obligation to process a grievance it determines to be meritless. Id.
Plaintiff also complains that one of his union representatives benefited by plaintiff's removal from the Susquehanna subdivision roster. Even if this is true, it does not establish a breach of the duty of fair representation. As the Second Circuit held in Haerum v. Air Line Pilots, supra:
The duty of fair representation does not require that a union achieve absolute equality among its members. Rather, because a union by necessity must differentiate among its members in a variety of contexts, see Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 97 L. Ed. 1048, 73 S. Ct. 681 (1953), a showing that union action has disadvantaged a group of members, without more, does not establish a breach of the duty of fair representation.