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DAVIS v. HOLLISWOOD CARE CTR.

July 11, 1994

WILBERT DAVIS, Plaintiff,
v.
HOLLISWOOD CARE CENTER AND LOCAL 1199, DRUG, HOSPITAL, AND HEALTH CARE EMPLOYEES UNION, Defendants.



The opinion of the court was delivered by: DAVID G. TRAGER

 TRAGER, District Judge:

 Wilbert Davis commenced this action under § 301 (a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), to challenge his discharge from Holliswood Care Center, Inc. Mr. Davis was employed as an orderly at Holliswood, a nursing care facility, from 1988 until June 1991. Mr. Davis has alleged that Holliswood's termination of his employment violated the collective bargaining agreement which Holliswood had entered into with Mr. Davis union, Local 1199, Drug, Hospital and Health Care Employee's Union ("Local 1199") . Moreover, Mr. Davis has asserted that Local 1199 violated its duty of fair representation owed to him when it failed to seek to arbitrate his discharge. Mr. Davis has also alleged a pendent state claim of defamation against Holliswood based on alleged negative job references it has provided to facilities where plaintiff has applied for employment.

 Defendants now move for summary judgment, and contend that dismissal is warranted because (1) this case is time-barred, (2) Holliswood did not breach the collective bargaining agreement when it fired Mr. Davis, and (3) Local 1199 did not breach its duty of fair representation. Because this case is time-barred under the applicable statute of limitations, it is unnecessary to decide whether there are any genuine issues of any material fact under the standards which govern the award of relief in this hybrid § 301/fair representation suit. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). *fn1"

 I. Background

 During the course of his employment at Holliswood, Mr. Davis received multiple warnings. Mr. Davis contests the substance of one or more of these disputes, but does not deny that these warnings were given. On June 6th, 1991, he was given a written warning for being verbally abusive to other staff members, including threatening them with violence. *fn2" Mr. Davis was suspended from work, and it appears that Holliswood had determined that it would fire Mr. Davis. On June 13, 1991, a meeting was held pursuant to what the collective bargaining agreement described as Step 3, at which time Holliswood management reviewed Mr. Davis' behavior with Mr. Davis and union representatives, including a union representative named Gus Marin. After the meeting, Holliswood terminated Mr. Davis' employment.

 Under the collective bargaining agreement, Local 1199 had the right to seek to challenge the discharge of Mr. Davis at an arbitration. Under Article XXXII of the collective bargaining agreement, a request for arbitration had to be filed within twenty-one working days after the Step 3 grievance had been completed.

 Mr. Davis argues, based on Mr. Marin's alleged conversation with him after the June 13th meeting, that the union had decided to go to arbitration, and that Mr. Marin's deposition testimony represented a post hoc effort to cover up his negligent failure to meet the twenty-one day filing deadline. Mr. Davis further contends that Mr. Marin's August 6, 1991 letter provides further proof of the intent of Local 1199 and Mr. Marin to arbitrate his case.

 Local 1199 contends that Mr. Davis was informed within a couple of weeks of the June 13th meeting that the union would not seek to arbitrate his case. Moreover, Mr. Marin testified that, before he wrote the August 6th letter, he told Mr. Davis that he intended to send the letter to try to bluff Holliswood, but that the union in fact would not seek to arbitrate Mr. Davis' discharge. Marin Deposition, Tr. 74-75 Mr. Davis claims that Mr. Marin never told him that a letter would be sent to Holliswood to try to bluff it into giving Mr. Davis back his former job. Mr. Davis also claims that he did not receive a copy of the August 6, 1991 letter, and only saw it when his attorney at a later date showed it to him. Davis Affidavit, P 14. The significance of this, if true, is not clear. It would not appear to be helpful to Mr. Davis' claim.

 Although Mr. Davis now claims in his affidavit in opposition to the motion for summary judgment that Mr. Marin told him in August that he was going to arbitration (P 14), the affidavit conflicts with his testimony at an earlier deposition during which Mr. Davis admitted that he was told as early as August 1991 that the union would not seek to contest his discharge in arbitration:

 
Q. He [Gus Marin] said you aren't going to go to arbitration?
 
A. Because we don't have any witness.
 
. . .
 
A. He said I have no witness. I said how come I don't have witness. He said my word is against your word is what Gus said to me.
 
Q. He said they did not think they could win your case, your arbitration?
 
A. They said they not taking to arbitration.
 
. . .
 
A. He told me that I don't have any witness. My word is ...

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