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JOSEPH v. LOCAL UAW 1097 UNION

March 5, 1996

CARLTON JOSEPH, Plaintiff,
v.
LOCAL UAW 1097 UNION, DENNY MILFORD, HERMAN DAILEY and CHUCK ISHMAN, Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Carlton Joseph, appearing pro se, commenced this action in New York State Supreme Court, Monroe County. Defendants removed the action to this court pursuant to 28 U.S.C. § 1441, on the ground that this court has original jurisdiction over the action under Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, and under 28 U.S.C. § 1331.

 Defendants have moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment under Rule 56. Since both sides have submitted matters outside the pleadings, I will treat the motion as a motion for summary judgment pursuant to Rule 12(b). Plaintiff has moved to compel joinder of Delphi Automotive Division of General Motors Corporation ("GMC") pursuant to Rule 19(a).

 INTRODUCTION

 The complaint alleges that plaintiff was formerly employed by GMC and was a member of the United Auto Workers Local 1097 ("the union"). On September 5, 1989, GMC terminated plaintiff's employment. Plaintiff contends that he sought a grievance hearing pursuant to his collective bargaining agreement ("CBA"), but that the union ignored his requests. Plaintiff alleges that the union thereby breached its obligations under the CBA.

 Plaintiff then commenced this action against the union and three individual defendants: Denny Milford and Herman Dailey, both of whom were on the union executive committee; and Chuck Ishman, a "Committeeman" who was responsible for filing grievances during the relevant time period. Plaintiff seeks a declaratory judgment that his termination was in breach of his employment contract, and he requests reinstatement and back pay and benefits.

 Defendants removed the action on the ground that this court has original jurisdiction under 29 U.S.C. § 185(a), which confers jurisdiction on district courts over any "suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce ..."

 Defendants now move for summary judgment on the following grounds: that plaintiff's claims are time-barred; that plaintiff failed to exhaust his internal union remedies; and that plaintiff has failed to state a cause of action for breach of duty of fair representation under the LMRA.

 Plaintiff moves to compel joinder of GMC. He contends that because he seeks reinstatement to his former position, GMC is an indispensable party to this action. GMC opposes the motion solely on the ground that the action is subject to dismissal for the reasons advanced by defendants, and that joinder would therefore be futile.

 FACTUAL BACKGROUND

 Plaintiff began working for GMC, and became a member of the union, in 1979. During his employment, his employment was governed by a series of CBAs between the union and GMC.

 In July 1989, plaintiff stopped reporting for work. GMC then sent him a notice on August 25, 1989, directing him to report to work. Milford Affidavit Ex. D. The notice warned him that if he did not report within five days after delivery of the notice, he would be terminated pursuant to paragraph 64(d) of the CBA, which provided that an employee would be terminated if he failed to return to work within five days after being notified to report, and failed to give a satisfactory reason for not reporting.

 Plaintiff did not report within five days after delivery of the letter, and he was therefore discharged effective September 5, 1989.

 There is some dispute about when plaintiff first contacted, or attempted to contact, the union about his discharge. Plaintiff, however, does not appear to dispute defendants' assertion that plaintiff did get in touch with someone at the union in January 1990, and that he met with defendant Ishman on January 31, 1990. Defendants contend, and again plaintiff does not deny, that Ishman told plaintiff that plaintiff would have to provide a satisfactory reason for his failure to report to work, that plaintiff stated that he would provide such proof, and that Ishman filed a grievance on plaintiff's behalf that same day. Ishman Affidavit Ex. B.

 While the grievance was pending, plaintiff sent certain letters and other information to the union in support of his grievance. Plaintiff sent several letters from a therapist at DePaul Mental Health Services ("DePaul") in Rochester. The gist of these letters was that plaintiff had come to DePaul on September 5, 1989 complaining of feelings of depression, and that it became evident that he had problems with substance abuse. Plaintiff was advised to seek evaluation at an appropriate facility and return to DePaul once he had done ...


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