with defendants concerning his grievance.
In fact, the documentary evidence in this regard--the letters from his then-attorney Lorenzo Williams to Dailey and Milford in 1994--indicates that plaintiff was well aware that, in his attorney's own words, "nothing had been done to resolve his grievance ..." Defendants' failure to respond to the letter to Milford by Williams' stated deadline of October 28, 1994, more than nine months before this suit was commenced, must be considered absolutely the last date on which plaintiff should have known of his claim. Cf. Demchik v. GMC, 821 F.2d 102, 106 (2d Cir. 1987) (triable issue of fact existed regarding whether fraudulent concealment tolled statute of limitations, since there was evidence that letter from union to plaintiff had deliberately misrepresented that plaintiff's grievance had been withdrawn on the merits, whereas in fact it was administratively closed due to union's failure to file appeal); King, 785 F.2d 31, 35 (summary judgment on limitations grounds inappropriate where there was evidence that union had led plaintiff to believe that arbitration of her grievance would be available after time to seek arbitration had expired).
The Seventh Circuit has held that a claim was time-barred under circumstances analogous to those in the case at bar. In Pantoja v. Holland Motor Express, Inc., 965 F.2d 323, 327 (7th Cir. 1992), the plaintiff's union had filed a grievance on his behalf. A local grievance committee found in his favor, but his employer ignored that finding and refused to reinstate him. His union did nothing further to pursue or enforce the grievance, despite the employee's letter asking them to do so and complaining about their inactivity. He received no response to the letter, and filed a § 301 claim sixteen months later.
Affirming summary judgment in the union's favor, the court held that the plaintiff's claim had accrued no later than the date on which the employee had written the letter complaining that the union had done nothing to reactivate his grievance or to attempt to enforce the grievance committee's finding. Stating that "prolonged inaction is sufficient to give a diligent plaintiff notice that the union has breached its duty of fair representation," the court held that the plaintiff could not "claim that the union's failure to respond to his requests kept his claim from accruing; he did need formal notification to realize that the union would not help him and that he needed to bring suit himself." Id. at 327. The court concluded that "the plaintiff cannot be allowed to sit back and claim lack of notice in circumstances such as these ..." Id. (quoting Metz v. Tootsie Roll Indus., Inc., 715 F.2d 299, 304 (7th Cir. 1983), cert. denied, 464 U.S. 1070, 79 L. Ed. 2d 214, 104 S. Ct. 976 (1984)).
I reach the same conclusion here. There is no evidence that plaintiff believed, or had any reason to believe, that defendants were continuing to press forward with his grievance after it was withdrawn on June 15, 1990. Several years passed and plaintiff took no action. Such inactivity is not consistent with the acts of one who truly intends to press his claim. The evidence indicates that plaintiff was fully aware at least by October 1994 that defendants had not pursued his grievance. His threat at that time to sue also shows that he believed the union's inactivity to be in breach of the CBA. His commencement of suit over nine months after the October 10, 1994 letter was therefore untimely, and this action is barred by the statute of limitations applicable to his claim.
II. Merits of Plaintiff's Claim
A union breaches its duty of fair representation only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). Though a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory manner, the individual employee does not have an absolute right to have his grievance taken to the highest level regardless of the provisions of the applicable CBA. Id. at 190-91. Even if a union member wishes to do so, then, a union does not violate its obligation by refusing to prosecute a grievance that it finds meritless, so long as its decision does not run afoul of its duties as set forth in Vaca. See Barr v. United Parcel Serv., Inc., 868 F.2d 36, 44 (2d Cir.) (union's good-faith nonarbitrary decision to decline to take action that is unlikely to be advantageous does not amount to breach of its duty of fair representation), cert. denied,, 493 U.S. 975, 107 L. Ed. 2d 502, 110 S. Ct. 499 (1989); cf. Young v. United States Postal Serv., 907 F.2d 305, 309 (2d Cir. 1990) (union's decision not to process "meritorious" grievances is breach of duty of fair representation).
I find on the undisputed facts of this case that plaintiff has not shown the existence of any genuine issues of material fact regarding the basis for the union's decision to withdraw his grievance. Defendants are therefore entitled to summary judgment on this ground as well.
In short, the record supports defendants' contentions that they did not see any basis for a satisfactory excuse for plaintiff's absence from work. Plaintiff's position is simply that it was arbitrary and discriminatory for defendants to withdraw his grievance knowing that plaintiff had drug and alcohol abuse problems and that he "had been on a binge" when he was ordered to return to work. Plaintiff's Memorandum at 2.
I am not persuaded by this argument. Plaintiff has not provided any evidence that his supervisors would have considered being "on a binge" a "satisfactory" reason for not showing up for work when ordered. Moreover, as GMC noted in its response to plaintiff's grievance dated February 14, 1990, "the question of what constitutes a 'satisfactory reason' for his failure [to report for work] is not even at issue due to the fact that [Joseph] had failed to provide any reason for his absence nor had he had any contact or communication with Management from July 18, 1989 to" February 14, 1990. Milford Affidavit Ex. F.
As noted, under the CBA the employee had the duty upon receiving the notice to report either to report within five days or to provide a satisfactory reason for not reporting. Even assuming that plaintiff's substance abuse problems could have constituted a satisfactory reason for not reporting, he has not shown any reason why he could not at least have contacted the employer to explain his absence.
Furthermore, it is not this court's task to decide whether the grievance had merit, but to determine whether there are any issues of fact concerning whether defendants' decision was arbitrary, discriminatory, or taken in bad faith. I find none. "If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery ... would be substantially undermined, thus destroying the employer's confidence in the union's authority." Vaca, 386 U.S. at 191. The proof here shows that defendants did take time to review whatever materials plaintiff could provide them concerning his absence, and it further supports defendants' decision not to proceed further with the grievance. Defendants are entitled to summary judgment on this ground as well.
Since the complaint is being dismissed, it would be futile to join GMC as a party. Plaintiff's claims against GMC would not in any way correct the flaws in his claims. Plaintiff's motion to compel joinder of GMC is therefore denied.
Defendants' motion for summary judgment (Item 8) is granted, and the complaint is dismissed with prejudice.
Plaintiff's motion to compel joinder of an additional party (Item 17) is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
March 5, 1996.