Jeffrey D. Albright v. DANIEL A. VIRTUE, Business Agent of the International Brotherhood of Teamsters

Filed December 6, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4279
JEFFREY D. ALBRIGHT; NORMAN T. BOIRE;
GARY M. DIETZ; WILLIAM H. ERDMAN; MICHAEL W.
FRITZ; A. RONALD FROMBAUGH; RALPH A. HARRIS;
ALLEN W. LANDIS; LOWELL McGUIRE; WALTER R.
MINICH; RAYMOND C. NEVINS; STANLEY L. NYE;
VINCENT RAMIREZ, JR.; KEITH E. SGRIGNOLI; RAY G.
SNYDER, JR.; LAWRENCE D. WELKER,
Appellants
v.
DANIEL A. VIRTUE, Business Agent of the International
Brotherhood of Teamsters; INTERNATIONAL
BROTHERHOOD OF TEAMSTERS; LOCAL 776,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS; ABF
FREIGHT SYSTEM, INC.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 00-cv-00878
(Honorable Sylvia H. Rambo)
Argued July 30, 2001
Before: BECKER, Chief Judge, McKEE and WEIS,
Circuit Judges
(Filed: December 6, 2001)

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ROBERT S. MIRIN, ESQUIRE
(ARGUED)
Mirin & Jacobson
8150 Derry Street
Harrisburg, Pennsylvania
17111-5260
Attorney for Appellants
WENDY D. BOWIE, ESQUIRE
(ARGUED)
IRA H. WEINSTOCK, ESQUIRE
Ira H. Weinstock, P. C.
800 North 2nd Street, Suite 100
Harrisburg, Pennsylvania 17102
JAMES A. McCALL, ESQUIRE
International Brotherhood
of Teamsters
25 Louisiana Avenue, N. W.
Washington, DC 20001
Attorneys for Appellees,
Daniel A. Virtue, Business Agent of
the International Brotherhood of
Teamsters; International
Brotherhood of Teamsters; Local
776, International Brotherhood of
Teamsters
JOSEPH E. SANTUCCI, JR.,
ESQUIRE (ARGUED)
MARY D. WALSH, ESQUIRE
Morgan, Lewis & Bockius
1800 M Street, N.W.
Washington, D.C. 20036
VINCENT CANDIELLO, ESQUIRE
Morgan, Lewis & Bockius, LLP
One Commerce Square
417 Walnut Street
Harrisburg, PA 17101
Attorney for Appellee,
ABF Freight System, Inc.
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OPINION OF THE COURT
BECKER, Chief Judge.
The plaintiffs in this appeal are members of a Teamsters
Local Union in Central Pennsylvania who objected to the
manner in which seniority lists were merged following the
consolidation of two trucking lines. When their internal
union grievances were unsuccessful, they brought what is
generally known as a hybrid duty of fair representation/
§ 3011 suit in the District Court for the Middle District of
Pennsylvania against the local union, its international
union parent, and its business agent, alleging breach of the
duty of fair representation (DFR), and against their
employer, alleging breach of the collective bargaining
agreement. This appeal is from the order of the District
Court granting summary judgment for all the defendants
based on the statute of limitations, and also from the
District Court' s order denying the union members' motion
for reconsideration.
The primary question on appeal is when the six-month
statute of limitations began to run against the union
members, an issue governed by DelCostello v. International
Brotherhood of Teamsters, 462 U.S. 151 (1983) and Scott v.
Local 863, International Brotherhood of Teamsters , 725 F. 2d
226 (3d Cir. 1984). We have not required that union
members who wish to file suit against the union or their
employers be given explicit notice that their grievances have
been rejected; rather, we have held that the statute of
limitations begins to run when "the futility of further union
appeals became apparent or should have become
apparent." Scott, 725 F.2d at 229. We are faced here with
the task of determining when it became clear or should
have become clear to the plaintiffs that any appeals
through the union were futile.
We conclude that the boilerplate language contained in
the decision of the grievance committee did not provide
_________________________________________________________________
1. § 301 of the Labor Management Relations Act, 29 U.S.C. A. § 185
(1947).
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clear guidance that the union would no longer proceed
with the plaintiffs' grievances, given the attendant
circumstances. We refer to letters from several plaintiffs to
the business manager of the local union requesting appeals
on their grievances and the opportunity to participate in the
appeals he undertook on their behalf, and the business
manager' s indication to them that their appeals were
pending. We think that this evidence before the District
Court on the motion for summary judgment raises a
genuine question of the existence of a date certain on which
it became clear or should have become clear to the
plaintiffs that further appeals were futile, thereby triggering
the statute of limitations. We will therefore set aside the
summary judgment in favor of the union and remand for
further proceedings.
We will also set aside the summary judgment for the
employer. On this issue we are guided by our conclusion in
Vadino v. A. Valey Engineers, 903 F. 2d 253 (3d Cir. 1990)
that the relevant statute of limitations inquiry in claims
against an employer is two-fold: (1) when did it become
clear to a plaintiff that the employer breached the collective
bargaining agreement; and (2) when did it become clear
that further union appeals were futile. This conclusion was
based on the realization that in order to make out a claim
against an employer for breach of the collective bargaining
agreement, a plaintiff must also allege, as a necessary
condition precedent, that the union would not process his
grievance. Because there exist genuine issues of fact about
when it became clear or should have become clear to
plaintiffs that further union appeals were futile, we will also
set aside the summary judgment against the employer.
The motion for reconsideration is important because its
disposition determines the scope of the record that informs
the statute of limitations decision. Plaintiffs attached a
number of documents to the motion for reconsideration
that were not before the District Court on the motion for
summary judgment, and the parties dispute whether we
may consider them. We will therefore take the motion for
reconsideration up first in our discussion. The appeal of the
order denying the motion for reconsideration is controlled
by our decision in Adams v. Trustee for the New Jersey
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Brewery Employees' Pension Trust Fund, 29 F. 3d 863 (3d
Cir, 1994), where we held that Federal Rule of Civil
Procedure 59(e), which permits motions for reconsideration
to be filed within ten days of the entry of judgment, cannot
be enlarged by Rule 6(e), which permits a three-day
extension to the time limit when such a limit begins to run
from the date of service of notice. We reject plaintiffs'
argument that our holding in Adams is undermined by
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993). Being satisfied that,
excluding weekends and holidays, the union members did
not file their motion for reconsideration within ten days, we
will affirm the order denying the motion for reconsideration.
Accordingly we will not consider the additional documents
(which favor the plaintiffs).
I. Facts and Procedural History
Prior to 1995, each of the plaintiffs was an "over-the-
road" truck driver for Carolina Freight Carriers Corporation
("Carolina Freight") at its Carlisle, Pennsylvania terminal,
and a member of Local Union No. 776 ("Local #776"), an
affiliate of the International Brotherhood of Teamsters
("International Union" ). On May 23, 1995, Carolina Freight
closed its Carlisle facility and laid off the plaintiffs. On
September 25, 1995, Arkansas Best Corporation, the
parent company of ABF Freight Systems ("ABF "), a
defendant in this action, merged with Worldway
Corporation, the parent company of Carolina Freight. ABF
was the surviving corporation and the operations of ABF
and Carolina Freight were combined.
Plaintiffs' employment at Carolina Freight, and
subsequently at ABF, was governed by a collective
bargaining agreement, the National Master Freight
Agreement ("NMFA"), and the Central Pennsylvania Over-
The-Road and Local Cartage Agreement (collectively,
"CBA"). Plaintiffs' seniority was determined by reference to
the CBA, and could be "broken only by discharge, voluntary
quit, retirement, or more than five (5) year layoff." Plaintiffs
had extensive "recall from layoff " rights for a period of five
years from the date of layoff; the CBA laid out the
determination of seniority in cases of recall, which we
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identify in the margin.2 Plaintiffs contend that ABF and the
Teamsters failed to contact them to recall them to work in
1998, as required under the CBA, and that they heard only
by "word of mouth" that there were open positions at ABF.
Between late November 1998 and February 1999, based on
the information they received about open positions at ABF,
each of the plaintiffs individually exercised his contractual
recall rights and was reinstated at the ABF Carlisle facility.
Once reinstated, the plaintiffs claimed that they were
placed on the bottom of the roster without any seniority
number, and that subsequent postings revising the
seniority lists were improperly calculated, in violation of the
CBA. See supra note 2. To pursue their claims, plaintiffs
filed grievances with Local #776, seeking to have their
seniority status recalculated. Following the grievance
procedure set out in Article 8 of the NMFA, Local #776
processed the plaintiffs' claims by selecting two"pilot"
grievances based on the March 1999 seniority posting to be
reviewed by the Eastern Region Joint Area Committee
("ERJAC"). On April 27, 1999 the ERJAC concluded that
the pilot grievances were untimely. Local #776 received the
ERJAC decision on May 10, 1999 and sent a notice to the
_________________________________________________________________
2. There are two provisions that govern recall and seniority rights in the
NMFA. The first, Article 5, Section 2(c)(2), governs recall from layoff in
order of seniority and states that "inactive seniority rosters (employees
who are on a letter of layoff) shall be similarly` dovetailed' by appropriate
classification. If additional employees are required after the active list is
exhausted, they shall be recalled from such inactive seniority roster and
after recall such employees shall be ` dovetailed' into the active seniority
roster with their continuous classification (road or city) seniority dates
they are currently exercising which shall then be exercised for all
purposes." The second provision, Article 5, Section 5, deals with
employees who elected a transfer to a new terminal during layoff and
states that "Over-the-road employees, who are on a letter of layoff, shall
be given an opportunity to transfer to permanent over-the-road
employment (prior to the employment of new hires) occurring at the over-
the-road domiciles of the Employer located within the Regional area
provided they notify the Employer in writing of their interest in a transfer
opportunity. . . . Any employee accepting such offer shall be paid at the
employee' s applicable rate of pay and shall be placed at the bottom of
the seniority board for bidding and layoff purposes, but shall retain
company seniority for fringe benefits only. "
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plaintiffs on May 11, 1999, including a copy of the ERJAC
decision.
The ERJAC decision, which was rendered on a preprinted
form, stated that "a majority decision of the[ERJAC] in the
. . . dispute will be final, conclusive and binding with no
appeal, and further, that neither party will attempt through
any overt acts, to void the decision rendered. "
Notwithstanding this language, some of the plaintiffs
complained to Daniel Virtue ("Virtue"), the business
manager for Local #776 and a defendant in this action. On
May 16, 1999, plaintiff Ray Snyder wrote to Virtue stating,
"I feel that my grievance contains different facts than the
one it was placed and heard under, therefore I am
requesting that you as my representative make any or all
appeals that are offered me as a union member under the
contract of the International Brotherhood of Teamsters. "
[A289]. This letter was followed by a similar letter
requesting the right to participate in an appeal by plaintiff
Walter Minich on May 16, 1999.
On May 20, 1999, Virtue responded to the plaintiffs'
requests for an appeal and informed them that he had
forwarded the appeal to the International.3 [A279, A337].
Although Virtue' s May 20, 1999 letter itself is not part of
the record before us, for the reasons explained in the
margin we may consider its contents.4 Subsequently, letters
_________________________________________________________________
3. Pursuant to Article 8, Section 2 of the CBA, the National Grievance
Committee may review and set aside the interpretation of any area
committee, such as the ERJAC. The relevant portion of the CBA reads:
The National Grievance Committee by majority vote may consider
and review all questions of interpretation which may arise under the
provisions contained in the National Master Freight Agreement
which are submitted by either the National Freight Director or the
designated employer representative; and shall have the authority to
reverse and set aside the majority interpretation of any area,
regional, or local grievance committee or arbitration panel
established within the Supplemental Agreements if, in its opinion,
such interpretation is contrary to the provisions set forth in the
National Master Freight Agreement, in which case the decision of
the National Grievance Committee shall be final and binding.
4. While this letter was not part of the record before the District Court
on the motion for summary judgment, there were extensive references to
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were sent to Virtue by plaintiffs Vincent Ramirez on June 7,
1999 [A337], William Erdman on June 9, 1999[A198], and
Lawrence Welker on June 25, 1999 [A304] requesting an
"opportunity to participate in the process of formulating an
argument in support of my appeal." There is no indication
in the record that Virtue ever informed the plaintiffs that
the appeals were not progressing. Some of the plaintiffs
continued to file grievances when each new seniority
posting was issued, but the Union refused to process these
grievances, citing the ERJAC decision. 5
On May 16, 2000, more than twelve months after the
ERJAC rendered its decision, the plaintiffs filed this action
against Virtue, the International Union, and Local #776.
The defendants moved to dismiss the complaint pursuant
to Rule 12(b)(6), attaching affidavits and exhibits in support
of their motion. The plaintiffs then filed a brief in opposition
to the motion to dismiss, attaching affidavits and exhibits
in support of their position as well. The District Court
granted the defendants' motion styled under Rule 12(b)(6);
however, because the District Court reviewed affidavits and
_________________________________________________________________
it. Most importantly, before the District Court on the motion for
summary judgment was the affidavit of plaintiff Ramirez. Attached to
this affidavit is the June 7, 1999 letter from Ramirez to Virtue, which
references Virtue' s May 20, 1999 letter by stating," Pursuant to letter
dated May 20, 1999, you forwarded my appeal to International." While
a statement concerning what Virtue told the plaintiffs would normally be
hearsay, in this context the statement, referenced in a sworn affidavit, is
by a party-opponent offered against that party and therefore falls within
the exception to the hearsay rule. See Federal Rule of Evidence
801(d)(2)(D) ("A statement is not hearsay if . . . . The statement is offered
against a party and is a statement by the party' s agent or servant
concerning a matter within the scope of the agency or employment,
made during the existence of the relationship . . ."). Thus, although the
actual May 20, 1999 letter does not appear in the record before the
District Court on the motion for summary judgment and is therefore not
part of the record on appeal, we will treat the statement in plaintiff
Ramirez' s letter as fairly representing what Virtue told the plaintiffs
respecting an appeal of the ERJAC decision for purposes of our analysis
of the statute of limitations, infra Part IIIA.
5. These additional grievances are not directly at issue in this case, as
the plaintiffs argument pertains specifically to the handling of the filed
grievances from which the "pilot" grievances were selected.
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other documents outside of the pleadings in evaluating
defendants' motion to dismiss, we review the record
pursuant to Rule 56. Pursuant to Rule 12(b)(6), if"matters
outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56. "
The District Court held that the six-month statute of
limitations for filing an action based on a breach of the
duty of fair representation and for breach of the collective
bargaining agreement began to run on May 10, 1999, the
date on which the plaintiffs received notice of the ERJAC
decision, which included the language that the decision
was "final, conclusive and binding with no appeal." Since
the present action was not filed until May 16, 2000, more
than twelve months later, the District Court concluded that
the plaintiffs' cause of action was time-barred. It filed its
order dismissing the complaint on November 13, 2000. On
November 30, 2000, seventeen days after the District
Court' s order dismissing the complaint, plaintiffs moved for
reconsideration. This request was denied.
This timely appeal followed. The District Court had
jurisdiction pursuant to 28 U. S.C. § 1331 and the Labor
Management Relations Act, § 301, 29 U.S. C.A.§ 185 (1947).
We have jurisdiction pursuant to 28 U.S. C. § 1291. We
exercise plenary review over a district court' s grant of
summary judgment. See Pi Lambda Phi Fraternity, Inc. v.
Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).
We set forth the familiar standards governing review of
summary judgment motions in the margin.6 We also
exercise plenary review over a district court' s denial of a
motion for reconsideration as untimely. See Adams v.
Trustees of the New Jersey Brewery Employees' Pension
Trust Fund, 29 F.3d 863, 869-70 (3d Cir. 1994).
_________________________________________________________________
6. Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-
moving party, the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). The judge' s function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
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II. The Motion For Reconsideration
Plaintiffs' submission that their motion for
reconsideration was timely rests on Rule 6(e), which
provides:
Whenever a party has the right or is required to do
some act or take some proceedings within a prescribed
period after the service of a notice or other paper upon
the party and the notice or paper is served upon the
party by mail, 3 days shall be added to the prescribed
period.
Fed R. Civ. P. 6(e) (Emphasis added). The District Court
entered its summary judgment order on November 13,
2000. Pursuant to Rule 59(e), plaintiffs moved for
reconsideration on November 30, 2000, seventeen days
after the summary judgment order was entered.7 As
explained supra note 7, excluding holidays and weekends
per Rule 6(a), the plaintiffs' motion for reconsideration was
filed twelve days after the entry of judgment. Only if Rule
6(e) added three days to the ten-day limit would the motion
would be timely.
We note at the outset that we have previously concluded
that Rule 6(e) does not apply to Rule 59(e) motions for
reconsideration. In Adams v. Trustee for the New Jersey
Brewery Employees' Pension Trust Fund, 29 F. 3d 863 (3d
Cir, 1994), we wrote:
The [plaintiffs] contend[ ] that since they were ` served'
the judgment of the court by mail, the rule applies to
extend the period. The Rule 6(e) extension is
inapplicable here. Rule 59(e) gives the right to move for
reconsideration ` not later than 10 days after entry of
judgment.' (Emphasis added). Thus, the period for
bringing the 59(e) motion begins with the ` entry of
_________________________________________________________________
7. In calculating the Rule 59(e) ten-day period relative to the District
Court' s summary judgment order, the day the order was filed and
intermediate Saturdays, Sundays, and legal holidays are not included in
the computation. Fed. R. Civ. P. 6(a). Excluding the weekends and
Thanksgiving holiday, the motion for reconsideration in this case was
not filed until 12 days after the summary judgment order was entered.
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judgment.' Rule 6(e) only extends time limits that begin
with ` service of notice or other paper upon the party.'
Id. at 870. It is thus clear that the critical point for
measuring the timeliness of a 59(e) motion is not the date
of service, but the date that the judgment is entered. Every
court to consider the argument that Rule 6(e) extends the
Rule 59(e) time limit by three days has rejected such an
argument. See, e. g. Halicki v. La. Casino Cruises, Inc., 151
F.3d 465, 467-68 (5th Cir. 1998); Parker v. Bd. of Pub.
Utils., 77 F.3d 1289, 1290-91 (10th Cir. 1996); Derrington-
Bey v. D.C. Dep' t of Corr., 39 F.3d 1224, 1225-26 (D.C. Cir.
1994); Cavaliere v. Allstate Ins. Co., 996 F. 2d 1111, 1113-
14 (11th Cir. 1993); Flint v. Howard, 464 F. 2d 1084, 1087
(1st Cir. 1972); see also 1 James Moore et al., Moore' s
Federal Practice § 6. 053[3], at 6-35 (3d ed. 1998) ("Rule 6(e)
does not apply to time periods that begin with the filing in
court of a judgment or order. Thus, Rule 6(e) does not
apply to the 10-day period that runs from entry of
judgment for moving to alter or amend judgment pursuant
to Rule 59(e).").
We have also previously concluded that " Rule 6(b)
provides that the time limit of Rule 59(e) may not be
judicially extended . . . . [T]he ten-day period ` is
jurisdictional, and cannot be extended in the discretion of
the district court.' " Adams, 29 F. 3d at 870 (citing Welch v.
Folsom, 925 F. 2d 666, 669 (3d Cir. 1991)). There thus
appears to be no error in the District Court' s conclusion
that the motion was not timely filed in this case.
Notwithstanding the foregoing, plaintiffs ask us to
reevaluate our holding in Adams based on Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163 (1993).
In Leatherman, the Supreme Court struck down the
heightened pleading standard in § 1983 cases required by
the decisional law of the Fifth Circuit because the
heightened standard was not required by the Federal Rules
of Civil Procedure. Part of the rationale for the holding was
that the Civil Rules must be read literally -- Rule 9(b)
specifically addressed the issue of more particular
pleadings in certain actions, but did not include§ 1983
complaints, so that a court could not require heightened
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pleading in these cases. Id. at 168. Plaintiffs contend that,
under the rationale that the Federal Rules of Civil
Procedure should be given full effect as expressed in
Leatherman, it is necessary to extend the Rule 59(e) time
period by three days as required by Rule 6(e) in order to
give effect to the rules as written. We disagree.
As we explained in Adams, the clear language of Rule 6(e)
demonstrates that it is not applicable to Rule 59(e). Rule
6(e) applies to cases where the time limit is measured from
the "date of service," whereas Rule 59(e)' s time limit is
measured from the "entry of judgment. " Thus, applying the
rules as written, as plaintiffs argue we are constrained to
do by Leatherman, we conclude that our holding in Adams
is sound. The explicit language of the rules contradicts an
interpretation that the three-day extension should be added
to Rule 59(e). Moreover, the policy behind the short time
period in Rule 59(e) is to promote finality of judgments.
Rule 6(b), which explicitly denies a court the power to
extend the time for taking action under certain rules, was
amended in 1946 to include Rule 59(e) because "there
should be a definite point where it can be said a judgment
is final." Fed. R. Civ. P. 6(b) Advisory Committee Notes to
1946 Amendment. Thus, we disagree with plaintiffs'
contention that the policy behind Rule 6(e), providing
additional time to adequately prepare a response when the
party is served by mail, applies to Rule 59(e) motions. We
will therefore affirm the order denying the motion for
reconsideration.
Having concluded that the motion for reconsideration
was not timely, we must determine whether we can
consider certain correspondence between Virtue and the
plaintiffs that was attached to the request for
reconsideration, but not to the affidavits with the motion to
dismiss (which, as explained supra, we treat as a motion for
summary judgment). Included among these documents that
were part of the untimely motion is a May 20, 1999 letter
from Virtue to Phil Young, Freight Director, which requests
that the plaintiffs' grievances be reviewed per Article 8,
Section 2 of the NMFA. See supra note 3. This letter was
copied to some of the plaintiffs. Also among the documents
accompanying the motion was an August 10, 1999 letter
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from Virtue to plaintiff Snyder stating that a request for
review with respect to his seniority grievance had been
forwarded to the National Review Committee. Since we
affirm the order of the District Court denying the motion for
reconsideration as untimely, these documents were not
properly before the District Court and are not part of the
record on appeal. We thus adjudicate the appeal on the
basis of the documents that were originally before the
District Court.
III. Statute of Limitations
Plaintiffs submit that the District Court erred in
concluding that their hybrid DFR/§ 301 suit was barred by
the six-month statute of limitations established in
DelCostello v. International Brotherhood of Teamsters, 462
U.S. 151 (1983). In cases such as this one, there are no
clear guidelines as to when the statute of limitations begins
to run, because the Supreme Court has not required
plaintiffs to exhaust all internal union remedies before
bringing a § 301 claim. Clayton v. Auto. Workers, 451 U.S.
679, 689-693 (1981) (refusing to require a universal
exhaustion requirement). Rather, we have held that the
limitations period begins to run when " ` the plaintiff receives
notice that the union will proceed no further with the
grievance.' " Hersh v. Allen Prods. Co. , 789 F. 2d 230, 232
(3d Cir. 1986) (quoting Bruch v. United Steelworkers of
America, 583 F. Supp. 668, 670 (E.D. Pa. 1984)). No explicit
notice has been required by this court; the closest we have
come is the statement that the period begins to run"when
it becomes clear that further union appeals would be
futile." Vadino v. A. Valey Engineers, 903 F. 2d 253, 260 (3d
Cir. 1990) (quoting Scott v. Local 863, Int' l of Teamsters,
725 F.2d 226, 229 (1984)) (Emphasis added).
This approach has been characterized as "court-inspired
vagueness," and makes these cases difficult. Scott, 725
F. 2d at 230. Most notably, courts are faced with the
challenge of determining when the futility of appeals was or
should have become "clear" to the plaintiffs, thereby
triggering the statute of limitations. As noted in Scott, the
futility of further union appeals may not be clear to
employee plaintiffs because "union officials may well be
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equivocal or contradictory in their communications to
dissatisfied members and may send such communications
through persons within the internal union hierarchy whose
authority to bind the union is at best hazy." 725 F.2d at
230 (Becker, J. concurring).8
A. The Evidence Presented on the Motion for
Summary Judgment
Defendants argue that the statute of limitations began to
run when the plaintiffs received the ERJAC decision on May
10, 1999. In support of this position, they point to the
language on the preprinted ERJAC form that was sent to
the plaintiffs, which reads, in part, that a decision of the
ERJAC "will be final, conclusive and binding with no
appeal" and that "neither party [would] attempt through
any overt acts, to void the decision rendered. " Since
plaintiffs filed their claim on May 16, 2000, defendants
argue that the six-month statute of limitations period had
already run and the suit was time-barred. The District
Court agreed with this conclusion, reasoning that the
language in the ERJAC decision provided the required
notice that the union would no longer proceed with the
grievance.
Were this the only communication between the plaintiffs
and the union prior to filing the present lawsuit in May
2000, the outcome would be clear. However, we believe that
additional correspondence that was presented to the
District Court and is in the appellate record creates an
issue of material fact as to the time at which it became
clear or should have become clear to the plaintiffs that
_________________________________________________________________
8. In the view of the writer, this situation creates a guessing game for a
plaintiff:
[I]f, in reliance on what he thought were genuine internal remedies,
he refrains from suing for as much as six months, and it is
ultimately determined that these remedies were illusory, his suit will
be forever barred. . . . [T]o avoid this trap, employee plaintiffs will
have to file numerous precautionary lawsuits . . . in the hopes that
perhaps one of the suits will have been timed correctly.
Scott, 725 F. 2d at 231.
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further union appeals would be futile, thus commencing
the statute of limitations period. The parties came to an
agreement on the documents that were before the District
Court on the motion to dismiss. This agreement states, in
part, that "[a]ll documents in or attached to Supporting
Affidavits and Documents to Defendants' Motion to
Dismiss" and "[a]ll documents contained in or attached to
Conformed Brief in Opposition to Defendants' Motion to
Dismiss and Signed Supporting Affidavit Verifications of
Plaintiffs" were before the District Court. We find this
satisfactory. Excluding the documents attached to the
motion for reconsideration for the reasons discussed above,
these documents comprise the record on appeal.
Among these documents are letters from some of the
plaintiffs to Virtue. In particular, on May 16, 1999, plaintiff
Snyder wrote to Virtue, stating in relevant part, "I feel that
my grievance contains different facts than the one it was
placed and heard under, therefore I am requesting that you
as my representative make any or all appeals that are
offered to me as a union member under the contract of the
International Brotherhood of Teamsters. " [A289]. On that
same day, plaintiff Minich wrote a letter to Virtue with
exactly the same request. [A252]. Most important in the
record, on June 7, 1999, plaintiff Ramirez wrote to Virtue,
stating "Pursuant to a letter dated May 20, 1999, you
forwarded my appeal to International. . . . please advise me
immediately of my rights to a statement, presentation of
evidence, and/or participating in this appeal process that I
may have of right so as to enable to [sic] rectify the
injustice imposed on me to date." [A337]. This letter
indicates that Virtue told plaintiff Ramirez that his appeal
had been forwarded for review. See supra note 4.
This letter was followed by a letter on June 9, 1999 from
plaintiff Erdman to Virtue, which stated, "Please be advised
that by this letter I am formally requesting an opportunity
to participate in the process of formulating an argument in
support of my appeal. . . . Please inform me rightly as to
what my rights are to personally defend myself in this
appeal process as I have had bias [sic] representation to
date and have been unjustly treated." [A198]. Plaintiff
Welker sent two letters to Virtue on June 7 and June 25,
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1999, which both stated that he was "requesting an
opportunity to participate in the process of formulating an
argument in support of my appeal." [A304].
From this correspondence, viewing the evidence in the
light most favorable to the non-moving party, in this case
the plaintiffs, it is apparent that the plaintiffs reasonably
believed that Virtue was undertaking an appeal for some of
them. Moreover, subsequent letters from five other plaintiffs
indicate that their appeals had been forwarded as well, as
they requested the right to participate in those appeals. At
all events, under the summary judgment standard it cannot
be said that it was clear (or clear to the plaintiffs) that
further union appeals would be futile when Virtue gave
these plaintiffs the impression that their grievances were on
appeal. We cannot conclude, therefore, that the ERJAC
decision, even with the boilerplate language, was the end of
the grievance process for these plaintiffs and a date certain
from which we can calculate the statute of limitations.9
In this regard, we also take note of the affidavits
submitted to the District Court in opposition to the motion
to dismiss. We are mindful that documents merely referred
to in these affidavits, but which were not attached to such
affidavits, cannot be considered either by the District Court
or by this court. Pursuant to Rule 56(e), "[s]worn or
certified copies of all papers or parts thereof referred to in
an affidavit shall be attached thereto or served therewith."
_________________________________________________________________
9. Although not argued by the plaintiffs, we note that there is arguably
another ground for this conclusion. As referenced supra note 3,
according to the CBA, the National Grievance Committee has the
authority "to reverse and set aside the majority interpretation of any
area, regional, or local grievance committee or arbitration panel . . . if,
in its opinion, such interpretation is contrary to the provisions set forth
in the National Master Freight Agreement, in which case the decision of
the National Grievance Committee shall be final and binding." (Emphasis
added). Thus, it appears that there is an inconsistency between the
language on the preprinted ERJAC form and the CBA with respect to the
finality of the ERJAC decisions. Pursuant to the CBA, ultimate authority
rests with the National Grievance Committee. Under this reading, the
ERJAC decision was not the time at which further union appeals would
be futile, thereby triggering the statute of limitations. However, we need
not rely on this argument.
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(Emphasis added). However, we may consider the affidavits
themselves, which do not entirely depend on the
documents. In doing so, we note that the affidavits further
elucidate what is suggested in the aforementioned
correspondence. In plaintiff Snyder' s affidavit, he states
that, on May 20, 1999, Virtue "replied to our request for
any and all appeals sent." [A279]. Furthermore, in almost
every affidavit presented in opposition to the motion to
dismiss, the affiant states, "My grievance followed the same
grievance history and treated the same as Mr. Snyder' s (i.e.,
it was denied as untimely by the company, referred to the
Eastern Conference, it was denied by the Conference and
then referred to Phil Young, Freight Director, it' s on appeal
and then referred to the NGB where it is pending at this
time)." (Emphasis added). [A 174, 186, 194, 229, 240, 247,
259, 277].
Given this record, we cannot conclude that it was clear to
the plaintiffs that further union appeals would be futile.10
The requests made to Virtue evidence a sincere belief by the
plaintiffs that appeals of their grievances were underway
and, from the record, it appears that Virtue did undertake
appeals on behalf of the plaintiffs (and that he had the
authority to do so, notwithstanding the preprinted language
on the ERJAC decision, see supra note 9). At the very least,
he gave the impression that he did. Moreover, there is no
evidence before us that suggests that these appeals have
been resolved; the record does not indicate that he gave the
plaintiffs any information on the progress of their appeals.
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10. Situations like the one presented in this case could easily be avoided.
As was observed in the Scott concurrence, the guesswork could be
eliminated by allowing the statute of limitations to begin running "only
from the time that the employee has received from[the union] a clear,
written statement telling him that further internal appeals are futile, and
the time for judicial action has begun." Scott, 725 F.2d at 231 (Becker,
J. concurring). Alternatively, or in addition, a union could have the
option of "waiving (in equally express terms) any reliance on its right
under Clayton to bar suits for failure of the employee to exhaust internal
union remedies." Id. If such a "right-to-sue" letter or waiver were
required in cases like the one before us, plaintiffs and courts would no
longer have to subject themselves to the guessing game of determining
when it became clear or should have become clear that further appeals
through the union were futile.
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Thus, it does not appear from the record that there exists
a date certain on which we can say the statute of
limitations began to run; it is not clear that the plaintiffs
had "notice that the union w[ould] proceed no further with
the grievances." Hersh v. Allen Prods. Co. , 789 F. 2d 230,
232 (3d Cir. 1985). Hence, we cannot conclude that the
Union was entitled to summary judgment on statute of
limitations grounds, and we will therefore vacate the
summary judgment order of the District Court and remand
for further proceedings.
B. Summary Judgment Against the Employer
The plaintiffs contend that ABF breached the CBA by
failing to recall the plaintiffs from layoff according to
seniority. In addition, plaintiffs argue that ABF artificially
inflated its seniority roster by hiring new, less expensive
drivers in order to avoid its obligation to employ or recall
the plaintiffs. Finally, plaintiffs submit that ABF is in
breach of the CBA by failing to dovetail the seniority of the
recalled plaintiffs in the prescribed manner. ABF asserts
that the order granting summary judgment for it is correct
since it did not have any knowledge of ongoing negotiations
between the plaintiffs and union representatives and, thus,
the statute of limitations on the § 301 claim began to run
on the date of the ERJAC decision -- May 10, 1999.
The governing case is Vadino v. A. Valey Engineers, 903
F. 2d 253 (3d Cir. 1990). Vadino involved a claim brought by
an employee against his employer but not the union,
alleging both breach of the collective bargaining agreement
and breach of the duty of fair representation. In the typical
hybrid DFR/§ 301 case where an employee sues the union
for breach of the duty of fair representation and the
employer under § 301 for breach of the collective bargaining
agreement, the same statute of limitations applies to both
defendants. As we noted in Vadino, the case was "atypical"
because the plaintiff sued only his employer, but we
observed that such suits are permissible under DelCostello.
Thus, in Vadino we had to decide whether the statute of
limitations could be tolled as to the employer based on the
employer' s own actions as well as any assurances given by
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the union when the employee brings a hybrid DFR/§ 301
action only against his employer, and not the union as well.
We held in Vadino that the "relevant statute of limitations
question . . . is not only when Vadino knew, or should have
known, that the employer breached the contract but also
when he knew, or should have known, that further appeals
to the Union would be futile." Id. at 261. In reaching this
conclusion, we noted that to hold otherwise would"put the
plaintiff in an untenable position because of the
interconnection between the two claims." Id . at 261. More
precisely, if Vadino' s cause of action against the employer
accrued as of the time of the breach of the collective
bargaining agreement, but before it was clear whether
further union appeals were futile, Vadino' s "ability to file a
§ 301 suit against [his employer] would be ephemeral
because such a claim could not be maintained until he
could fairly allege that the Union refused to process his
grievance. The unfair representation claim is the necessary
` condition precedent' to the employee' s suit." Id. (emphasis
added). Moreover, we observed that tolling the § 301 claim
until the unfair representation claim accrued is"consistent
with the congressional goal of resolving labor disputes in
the first instance through the collectively bargained
grievance procedure." Id.
We are guided by our observation in Vadino that a
plaintiff ' s ability to file a § 301 suit against his employer
would be elusive if a plaintiff had to file the§ 301 claim
prior to resolving grievances with the union. A breach of the
duty of fair representation claim is a "necessary condition
precedent" to the § 301 claim; in hybrid suits where the
employee sues both the employer and the union, an
employee must still allege that the union refused to process
his grievance as a condition precedent to the § 301 claim.
Thus, it would not make analytic sense to conclude that the
statute of limitations begins to run on the § 301 claim when
it has not begun to run on the duty of fair representation
claim. 11 We conclude that the statute of limitations may be
_________________________________________________________________
11. In addition, we observe that allowing the statute of limitations to run
against the employer while an employee is still pursuing a grievance with
the union might frustrate an employee' s ability to seek redress for
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tolled against the employer in a hybrid case when the
employee sues both the employer and the union, even when
the reason for tolling the statute of limitations is due to the
action of the union alone.
Although we affirmed the grant of summary judgment for
the employer in Vadino, we did so because we found that
Vadino had not filed his lawsuit within the six-month
period of time. We rejected Vadino' s argument that a
request for a grievance within six months of filing suit
tolled the statute of limitations, noting that "repeated
requests to a union to institute a grievance . . .[could not]
perpetually toll the statute of limitations, despite the
employee' s belief that such requests were futile." Id. at 262-
263 (emphasis added). The facts of the case before us are
different; here we conclude that there is a genuine issue of
material fact as to whether or not the plaintiffs did know or
should have known that further appeals were futile. Since
that is, as of yet, unknown, we cannot conclude that
summary judgment was appropriate for the employer and
will therefore set aside the order of the District Court
granting summary judgment for ABF.
We do not believe this result to be inconsistent with the
federal labor policy of promoting a prompt resolution of
disputes within the framework of the collective bargaining
agreement. We have recognized speedy resolution as a
policy of federal labor law, see Grasty v. Amalgamated
Clothing & Textile Workers Union, 828 F. 2d 123, 132-133
(3d Cir. 1987), but we have also recognized the
"congressional goal of resolving labor disputes in the first
instance through the collectively bargained grievance
procedures," Vadino, 903 F.2d at 262. Affirming summary
judgment for ABF, while reversing summary judgment for
the Union, would thwart this goal. As we noted in Vadino,
_________________________________________________________________
breach of contract against the employer since the employee needs to
pursue the grievance with the union prior to suing the employer.
Although we express no view on plaintiffs' allegations in this case that
ABF artificially inflated its seniority board by hiring new driver' s so as to
avoid its obligation to employ or recall the plaintiffs in this case, this
suggests the type of problem that might escape judicial review if we were
to toll the limitations separately in hybrid DFR/§ 301 actions.
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"to require a plaintiff to sue in court while the grievance
procedure has not run its course would be both inefficient,
as the grievance procedure may afford the plaintiff all the
relief s/he seeks, and unfair, as the plaintiff will be put in
the position of suing the union while it still represents
him/her." Id. at 262 n.11.
IV. Conclusion
For the foregoing reasons, we will vacate the order
granting summary judgment and remand for further
proceedings, but will affirm the order denying the motion
for reconsideration. Parties will bear their own costs.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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