Bommicino et al v. General Motors, LLC et al
ORDER and OPINION granting 53 General Motors' Motion for Summary Judgment and granting 56 the Union's Motion for Summary Judgment. Signed by Judge Julie E. Carnes on 3/23/12. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.
GENERAL MOTORS, LLC f/k/a
GENERAL MOTORS CORP., UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, LOCAL 10, et al.,
ORDER AND OPINION
This case is presently before the Court on defendant General
Motors, LLC’s (“General Motors”) Motion for Summary Judgment  and
defendant United Automobile, Aerospace & Agricultural Implement
Workers of America, Local 10's (the “Union” or “Local 10”) Motion for
Summary Judgment .
The Court has reviewed the record and the
arguments of the parties and, for the reasons that follow, concludes
that defendant General Motors’ Motion for Summary Judgment  is
GRANTED and the Union’s Motion for Summary Judgment  is GRANTED.
PLAINTIFF’S EMPLOYMENT AND TERMINATION
Plaintiff Charles Bommicino was an hourly employee of defendant
General Motors and worked as a forklift mechanic at the Doraville,
Georgia assembly plant.
(Def. General Motors Statement of Material
Facts (“GMSMF”)  at ¶ 1.)
Plaintiff was also a member of the
local chapter of the UAW: defendant Local 10.
(Union’s Statement of
Material Facts  at ¶ 1.) In approximately November 2005, General
Motors announced it was closing the Doraville assembly plant, along
with four other facilities.
(GMSMF  at ¶ 3.)
In connection with
the plant closure, General Motors offered a “Special Attrition
Program” (“SAP”) to hourly employees at Doraville in 2008.
The 2008 SAP was a collectively bargained agreement (“CBA”)
between General Motors and the UAW consisting of enhanced benefits
(Id. at ¶ 5.)
Under the 2008 SAP, employees could select one of four options
under which they could either retire or quit in exchange for enhanced
retirement benefits and/or a lump sum settlement.
(Id. at ¶ 7.)
Plaintiff signed up for the SAP on May 22, 2008, electing to retire
under “Option 1” on October 1, 2008 with certain retirement benefits,
subject to benefit plan terms, and a lump sum payment of $62,500.00.
(Id. at ¶ 9.)
In order to receive this option, the SAP provides that
the employee “must meet all eligibility conditions of the Option in
order to receive it.”
 at Ex. 1.)
(Form A, p. 2 of SAP, attached to Pl.’s Dep.
General Motors indicates that plaintiff’s active
employment on the designated date of separation was a prerequisite to
obtaining “Option 1” benefits under the SAP.
(Hunter Decl.  at
Unfortunately for plaintiff, General Motors terminated him
prior to the October 1 effective date of his retirement.
Specifically, weeks before plaintiff agreed to retire under the
SAP, Beth Zefo, a labor relations supervisor at General Motors, began
investigating a report that plaintiff was leaving the plant during
work hours and having another employee swipe his badge at the end of
the shift in order to clock him out.
 at 36-37.)1
(GMSMF  at ¶ 10; Zefo Dep.
As part of its investigation, General Motors
arranged for investigators from a third-party security service to
Plaintiff’s assertion that he lacks personal knowledge of the
inner workings of General Motors’ management and cannot state with
certainty the truth of the asserted fact does not prohibit a finding
that defendant General Motors’ offered fact is undisputed. The Local
Rules of this Court provide that “[t]he response that a party has
insufficient knowledge to admit or deny is not an acceptable response
unless the party has complied with the provisions of Fed. R. Civ. P.
56(d).” LR 56.1(B)(2)(a)(4), NDGa. Federal Rule of Civil Procedure
56(f) has been recast as Rule 56(d) since the 2010 amendments went
into effect and “[s]ubdivision (d) carries forward without
substantial change the provisions of former subdivision (f).” Notes
of Advisory Committee on 2010 Amendments. In any event, plaintiff
has not shown “by affidavit or declaration that, for specified
reasons, [he] cannot present facts essential to justify [his]
opposition.” FED. R. CIV. P. 56(d)(emphasis added).
follow plaintiff and record surveillance video if he left the plant
during work hours.
(GMSMF  at ¶ 11.)
In addition, General
Motors’ management assembled time clock and swipe history reports for
plaintiff to determine where in the plant this other employee was
clocking plaintiff out at the end of his shift.
Brassfield, Labor Relations Representative, conducted a disciplinary
interview with plaintiff on June 26, 2008, pursuant to Paragraph
76(a) of the “National Agreement.”
(Id. at ¶ 12.)
Agreement is a collectively bargained agreement between the national
UAW, defendant Union, and General Motors, that governs the terms and
conditions of plaintiff’s employment.
(Id. at ¶ 2.)
union representative, Shop Chairman Claude Willis, was also present
at this interview.
(Id. at ¶ 12.)
At this interview, Zefo presented
plaintiff with the results of her investigation.
Plaintiff was charged with leaving the plant while clocked in
and having another employee cover for his unauthorized departure by
swiping plaintiff’s badge at the end of the shift.
(GMSMF  at ¶
In essence, plaintiff was accused of stealing from General
Motors by accepting pay for hours he did not work.
To support this
charge, Zefo listed dates, times, and column locations of the time
clock where the badge was swiped, while plaintiff’s vehicle was
observed away from the plant.
Zefo also informed plaintiff
that, on May 20, 2008, she personally witnessed another employee
swipe plaintiff’s badge at 6:08 PM, while plaintiff (or at least his
vehicle) was observed away from the plant.
(Id. at ¶ 17.)
compared the 6:08 PM swipe time from the same station and confirmed
that plaintiff’s badge had been swiped at 6:08 PM and no other badges
had been swiped at that station around the same time.
Defendant denies that he was ever seen away from the plant while
he was clocked in, and attributes his perceived absenteeism to the
fact that investigators failed to realize that plaintiff owns several
vehicles and takes different vehicles to and from work.
GMSMF  at ¶¶ 13, 17.)
He said that he would go home for lunch
and return with a different vehicle, which might leave the impression
he was still at home.
(GMSMF  at ¶ 18.)
Although not mentioned
in the 76(a) interview, plaintiff later stated that his supervisor
allowed him to combine his lunch and break periods, which allowed him
to be away from the plant for up to an hour and fifteen minutes.
(Id. at ¶ 19.)
Plaintiff was asked during the interview to produce his employee
badge and asked if he had any other badges in his possession.
at ¶ 21.)
Plaintiff turned over two badges: his own and the badge of
Larry Grogan, a former General Motors employee.
General Motors requires employees to turn in badges when their
employment ends, plaintiff stated that Mr. Grogan gave him the badge
(Id. at ¶ 21.)
Zefo believes that plaintiff may have been using Mr.
Grogan’s badge to enter and exit the security gate without his own
(Zefo Dep.  at 103-104.)
Employees were not required to
swipe their badges to enter many of the gates; rather, they merely
needed to flash their badges to security.
Dep.  at 49-51.)
(Id. at 103-104; Willis
Thus, plaintiff could exit the plant while
another employee kept plaintiff’s actual ID badge so as to later
swipe that badge and make it appear that plaintiff had left at a
later time than he, in fact, departed.
At the close of the 76(a) interview on June 26, 2008, General
Motors notified plaintiff that he was being discharged immediately
for misconduct based on all the allegations set forth by management
during the interview.
(GMSMF  at ¶ 22.)
failed to remain employed until the effective date of his retirement,
General Motors took the position that he was no longer eligible for
retirement benefits or the lump sum payments under the 2008 SAP.
(Hunter Decl.  at ¶ 4.)
Brassfield, Willis, and Committeeman Craig Yates attended a 76(a)
interview with Stanislaw Kulpa. (GMSMF  at ¶ 26.) Zefo informed
Kulpa that she personally observed him swipe plaintiff’s badge on May
20, 2008, but Kulpa denied the allegations.
interview, defendant General Motors terminated Kulpa’s employment.
PLAINTIFF’S GRIEVANCE & SETTLEMENT NEGOTIATIONS
Immediately after plaintiff received his discharge paperwork,
union representative Willis submitted a grievance to management on
behalf of plaintiff, contesting his termination as unjust.
 at ¶ 24.)
 at 113.)
Zefo denied the grievance immediately.
Thereafter, Union representatives attempted to gather
information related to the allegations against plaintiff from other
employees in his department.
(GMSMF  at ¶ 27.)
Willis was unable to gather any additional information, and he
requested a meeting with Zefo and Personnel Director Steve Hunter to
discuss plaintiff’s discharge grievance. (Id. at ¶ 28.) Willis made
plaintiff and argued that the discharge was unjust given plaintiff’s
previously clean disciplinary record.
Willis to withdraw plaintiff’s grievance, but Willis declined to do
Later in July, Zefo took Willis to the break room where
she was located when she observed Kulpa swipe plaintiff’s badge.
(Id. at ¶ 29.)
Willis asked Zefo questions about where she was
positioned in the break room and how she could see the time clock at
which Kulpa swiped the badge.
(GMSMF  at ¶ 29.)
The next day, in an effort to build a defense for plaintiff,
Willis and the rest of the Shop Committee returned to the break room
and reconstructed the scene as Zefo described.
(Id. at ¶ 30.)
Shop Committee concluded that Zefo’s version of events was credible,
as she was in a position in which she could monitor the time clock
and positively identify Kulpa.
Willis met with Hunter and
Zefo again about plaintiff’s grievance, and argued that plaintiff
should be reinstated with full pay and benefits.
(Id. at ¶ 31.)
On or about August 7, 2008, Willis met with Sam Kuper, Senior
Labor Relations Manager, about plaintiff’s discharge grievance and
(Id. at ¶ 32.)
Willis and General Motors’
management met on several more occasions in August to discuss their
reinstatement with full back pay, but with management denying the
(GMSMF  at ¶ 33.)
Around this same time, Willis tried
to bolster plaintiff’s defense by presenting management with an order
awarding unemployment benefits in plaintiff’s favor.
(Id. at ¶ 34.)
On or about September 24, 2008, General Motors’ management
presented Willis with a settlement proposal for plaintiff’s grievance
by offering to classify plaintiff as “retired,” effective October 1,
2008, rather than “discharged,” thereby making plaintiff eligible for
regular retirement benefits.
(Id. at ¶ 35.)
Willis countered that
plaintiff should also receive the SAP payment and back pay, but
management rejected the demand. (Id. at ¶ 36.) Before accepting the
settlement, Willis conferred with the union benefits representative
and confirmed that plaintiff would lose health care and vested
pension benefits if he rejected the settlement and if plaintiff’s
case was dismissed at any future steps of the grievance procedure.
(Id. at ¶ 37.)
Accordingly, against the estimated $90,000.00 in SAP
money and back pay that plaintiff could gain if he prevailed on his
grievance, Willis weighed the loss of pension, life insurance, and
health care benefits that plaintiff would lose if his grievance were
(GMSMF  at ¶ 37.)
Willis also considered his own
plaintiff’s success in front of an umpire, given Zefo’s credible
(Id. at ¶ 37.)
After weighing all these
factors, Willis agreed to General Motors’ proposal and the settlement
was finalized on September 24.
(GMSMF  at ¶ 39.)
III. THE SETTLEMENT
Sometime between September 24th and September 26th of 2008, Tony
Lovely, UAW Zone Committeeman, notified plaintiff that his grievance
had been settled.
(Lovely Aff.  at ¶ 4; Pl.’s Dep.  at 98:2-
4.) Plaintiff understood that the settlement meant his grievance was
(Pl.’s Dep.  at 98:7-16.)
Lovely also informed
plaintiff that he could retire effective October 1st and should go to
the benefits representative to fill out the necessary paperwork to
take his retirement.
(Id. at 98:17-22, 99:1-7.)
Plaintiff was also
told that he would not receive back pay and would have to give up the
$62,500 SAP bonus, but that he would have health insurance until he
went on Medicare.
(Id. at 99:11-13 and 14-17.)
With regard to
further appeal, Lovely told plaintiff that if he did not accept the
settlement, he would “pretty much get nothing even if [he] appealed
it” and that any appeal would be of “no avail.”
(Id. at 101:16-24.)
After speaking with Lovely, plaintiff went to the Atlanta UAW office
in October 2008 to complete his retirement paperwork. (GMSMF  at
Plaintiff testified that he understood at this time that his
benefits shortly after submitting the paperwork.
After his phone conversation with Lovely, plaintiff repeatedly
sought written documentation of the settlement, but did not obtain it
until April 5, 2010.
(Pl.’s Aff.  at ¶ 40.)
Constitution governing the UAW and its members establishes a multistep grievance procedure, which culminates in final and binding
arbitration. (National Agreement, attached to Pl.’s Dep.  at Ex.
11, ¶¶ 28-55.)
Plaintiff never filed an internal appeal of the
Union’s acceptance of the settlement offer.
THE PRESENT SUIT
Plaintiff, along with Kulpa, filed suit against General Motors
and the Union in the Superior Court of DeKalb County on June 15,
Defendants removed to this Court on August 2, 2010. Plaintiff
filed an amended complaint  containing nine counts.
Count I alleges that defendant General Motors breached the
Agreement”, that controlled General Motor’s employment of Union
members. Count II alleges that defendant General Motors breached the
2008 SAP by terminating plaintiff under false pretenses and refusing
to pay benefits that were otherwise due.
Count III alleges wrongful
termination, and arises from the aforementioned CBA and plaintiff’s
Count IV alleges that the Union breached the National
Agreement by failing to adequately represent plaintiff during his
termination interview and through the grievance process.
seeks monetary relief in the form of back pay, payment of the
$62,500.00 SAP bonus, lost and future wages and benefits, punitive
damages (Count VIII), and attorneys’ fees (Count IX).2
The two defendants have moved separately for summary judgment,
but the Court will treat their arguments as if they were raised
Counts V, VI, and VII were brought on behalf of Kulpa, who
filed a stipulation of dismissal without prejudice shortly after the
filing of the amended complaint.
(Stipulation  and Order of
October 25, 2010 .)
jointly, unless otherwise noted.
Defendants’ argument in favor of
summary judgment is four-fold. First, defendants contend that all of
plaintiff’s claims, which were purportedly brought under state law,
recharacterized as arising under Section 301 of the Labor Management
Relations Act, defendants argue that the action should be dismissed
because plaintiff either filed his complaint outside the statute of
limitations or failed to exhaust administrative remedies.
on the merits, the Union defendant contends that it did not breach
any duties owed to plaintiff.
SUMMARY JUDGMENT STANDARD
The court must grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a).
party seeking summary judgment bears the initial burden to show the
district court, by reference to materials in the record, that there
are no genuine issues of material fact that should be decided at
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
initial burden is not satisfied, the motion must be denied and the
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
If the movant satisfies this initial responsibility, the nonmoving
party then bears the burden to show the existence of a genuine issue
of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991).
Where the movant bears the burden of proof on an issue, the
movant “must show that, on all the essential elements of its case on
which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.”
Fitzpatrick, 2 F.3d at 1115.
the nonmovant bears the burden of proof, the moving party need only
show the absence of evidence to support the nonmovant’s case, or
affirmative evidence demonstrating that the nonmovant will be unable
to prove their case at trial.
Id. at 1115-1116.
The court must view
all evidence and draw all reasonable inferences in favor of the
Johnson v. Governor of Fla., 405 F.3d 1214, 1217
(11th Cir. 2005).
sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.”
242, 249 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The substantive law will determine which facts are
material, and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id. at 248.
Plaintiff’s Claims are Preempted by Federal Law
Counts I, II, and III allege that defendant General Motors
breached either the National Agreement or the SAP, both of which are
therefore asserts that plaintiff’s state law claims for breach of
contract and wrongful termination are preempted by Section 301 of the
Labor Management Relations Act.3
(GM’s Br.  at 2-4.)
By enacting Section 301 of the Labor Management Relations Act
(“LMRA”), Congress intended for federal courts to fashion a body of
federal common law to be used to address disputes arising out of
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209
In determining whether Section 301 preempts a state law
claim, a court must “consider whether the claim arises from a CBA
or whether the resolution of the state-law claim depends upon the
meaning of a collective bargaining-agreement.”
Atwater v. NFL
Players Ass’n, 626 F.3d 1170, 1176-77 (11th Cir. 2010)(citations
If the claim arises out of, or its merits depend on the
meaning of a collective bargaining agreement, federal labor law
The Union makes effectively the same argument, but does not
use the term “preemption.”
Plaintiff’s claims based on alleged breaches of the National
Agreement and SAP are “substantially dependent upon analysis of the
terms of an agreement made between the parties in a labor contract.”
Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1338-39 (11th Cir.
2004)(holding that breach of contract claim under Georgia law would
agreement and is preempted by § 301 of the LMRA).
analysis of a CBA because “[i]n Georgia, wrongful termination is a
tortious act growing out of the breach of the employment contract.”
Fink v. Dodd, 286 Ga. App. 363, 365 (2007)(emphasis added).
v. Sweetheart Cup Co., Inc., 816 F. Supp. 720, 723-25 (S.D. Ga.
1993)(“claims of promissory estoppel and wrongful discharge clearly
necessitate interpretation of the collective bargaining agreement”);
Davis v. Texprint (GA), Inc., 774 F. Supp. 638, 640 (M.D. Ga. 1991).
Therefore, plaintiff’s claims brought under state law are preempted.
Plaintiff’s “Hybrid” Claim under Section 301 of the LMRA
Where preemption applies, the Court may either recharacterize
the claim as a Section 301 claim, or dismiss the claim as preempted.
Lueck, 471 U.S. at 220.
Because the parties’ briefs appear to
acknowledge that plaintiff’s claims are at least cognizable under
Section 301, the Court will treat plaintiff’s claims as if they were
brought under federal law.
Dunn v. Air Line Pilots Ass’n, 836 F.
Supp. 1574, 1580 (S.D. Fla. 1993)(characterizing misrepresentation
claim as breach of duty of fair representation).
Although plaintiff argues that he has properly raised a Section
301 claim, he disputes whether his lawsuit is properly understood as
a mere breach of contract action under Section 301, or the more
complex “hybrid claim.”
Because “hybrid claims” are subject to
distinct limitations and requirements, the Court must now decide
which characterization is appropriate.
“Whe[n] an employee sues [his] employer for breach of [a]
collective bargaining agreement and [sues] the union for breach of
the union’s duty of fair representation, the claims are known as
hybrid §301/fair representation claims.”
Shanks v. Potter, No. 11-
10426, 2011 WL 6004022, at *1 (11th Cir. Dec. 1, 2011); DelCostello
v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983).
contends that he is not suing the Union for its breach of a duty of
fair representation, but is instead basing his claim on the Union’s
obligations arising from the National Agreement and SAP.
Resp. Br.  at 10-12.)
A study of plaintiff’s allegations in
support of Count IV against the Union, however, clearly shows that he
is raising a “fair representation” claim against the Union, and thus
a “hybrid claim” against the Union and General Motors.
Count IV alleges that the Union breached the National Agreement
by “fail[ing] to assert all defenses available to [plaintiff] during
informing [plaintiff] of the status of his grievance proceedings,
grievance proceedings, and fail[ing] to respond to several attempts
by [plaintiff] to contact [the Union] about information regarding his
grievance proceedings.” (Am. Compl.  at ¶¶ 42-43.) In so doing,
the Union allegedly “acted arbitrarily, discriminatorily, and in bad
(Id. at ¶ 44.)
Plaintiff further alleges that CBAs between
General Motors and the Union imposed a “duty of care [on the Union]
to act as his agent in protecting and asserting [plaintiff’s] rights
to employment under the collective bargaining agreement.”
(Id. at ¶
By assuming this “duty of care towards [plaintiff] through its
execution of the collective bargaining agreement,” the Union was
allegedly “negligent in allowing [plaintiff] to be terminated from
his employment without cause under the pretext of false allegations,
by failing to assert all valid defenses on behalf of [plaintiff],”
and by “failing to exhaust any and all legal recourse available to
(Id. at ¶ 46.)
In sum, plaintiff is alleging that the Union acted “arbitrarily,
discriminatorily, and in bad faith” during its handling of his
grievance and overall representation before his employer.
These buzz words are the crux of a breach of the duty of fair
(Id. at ¶
See Barrington v. Lockheed Martin, U.A.W.
Local 788, 257 Fed. App’x 153, 156 (11th Cir. 2007)(“If the union
representing the employee ‘acts in such a discriminatory, dishonest,
arbitrary, or perfunctory fashion as to breach its duty of fair
representation,’ an employee may sue both the employer and the
union”). In his original complaint, plaintiff actually described his
(Compl.  at Count IV.)
His amended complaint
drops this moniker, but relies on the same basic allegations of
wrongdoing. Regardless of how plaintiff tries to label his claim, he
Nonetheless, plaintiff persists in denying that he is bringing
a claim for breach of a duty of fair representation, and instead
characterizes Count IV as his attempt, as a third-party beneficiary,
to enforce the National Agreement against the Union.
Br.  at 10.) In evaluating whether plaintiff may pursue a breach
of contract action based on the terms of a CBA, plaintiff must
demonstrate that the CBA “specifically indicat[es] an intent to
create obligations enforceable against the union by the individual
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 374
Paragraph 53 of the National Agreement provides that “[n]o
employee or former employee shall have any right under this Agreement
in any claim, proceeding, action or otherwise on the basis, or by
representative has acted or failed to act relative to presentation,
prosecution or settlement of any grievance or other matters as to
which the Union or any Union officer or representative has authority
(Nat’l Agmt. at ¶ 53, attached to Pl.’s Dep. .)
intention not to create any sort of obligation enforceable by a
third-party union member like plaintiff. See Loveless v. Eastern Air
Lines, Inc., 681 F.2d 1272, 1279 (11th Cir. 1982)(“In construing any
contract, including a [CBA], determining the intent of the parties is
the essential inquiry.”); Alford v. General Motors Corp., 926 F.2d
528, 530-31 (6th Cir. 1991)(construing similarly worded language as
Neither a provision obligating union representatives to behave
professionally, nor an aspirational statement about adhering to the
grievance process, can be read in context to “specifically indicat[e]
an intent to create obligations enforceable against the union by the
See Hester v. Int’l Union of Operating
Eng’gs, 941 F.2d 1574, 1580 (11th Cir. 1991).
is not a third-party beneficiary of the National Agreement and Count
IV is properly understood as a claim for the breach of the duty of
Because Count IV clearly rests on the assertion that the Union
breached its duty of fair representation and plaintiff also alleges
plaintiff is bringing a hybrid claim.
DelCostello, 462 U.S. at 164-
Defendants move for summary judgment on the grounds that
plaintiff’s suit is barred by two doctrines governing hybrid claims:
the statute of limitations and the exhaustion of internal remedies.
III. STATUTE OF LIMITATIONS
plaintiff’s complaint is barred by the statute of limitations. (GM’s
Br.  at 9-11; Union’s Br.  at 3-5.)
Hybrid claims are
subject to a six-month statute of limitations.
Sams v. United Food
& Commercial Workers Int’l Union, 866 F.2d 1380-1382 (11th Cir.
A cause of action accrues under Section 301, and the statute
of limitations begins to run, when in the “exercise of reasonable
diligence the claimant knew or should have known of the injury.”
Hill v. Ga. Pwr. Co., 786 F.2d 1071, 1074-75 (11th Cir. 1986).
timeliness of the suit is measured “from the date on which the
employee knew or should have known of the union’s final action or the
employer’s final action, whichever occurs later.”
(emphasis in original).
Id. at 1075.
Final action means the point “where the
grievance procedure was exhausted or otherwise broke down to the
Id. (citing Proudfoot v. Seafarer’s Int’l
Union, 779 F.2d 1558, 1559 (11th Cir. 1986)).
Finally, because a
hybrid § 301 claim involves interdependent claims against an employer
and its union, the Eleventh Circuit has noted that the separate
causes of action (duty of fair representation and breach of contract)
“accrue simultaneously” for statute of limitations purposes.
Defendants contend that the Union conducted its “final action”
around September 24, 2008,4 when a Union official orally notified
plaintiff what the
terms of that settlement were.
9-11; Union Br.  at ¶¶ 8-9.)
(GM’s Br.  at
Accordingly, with a six-month
limitation period, the statute of limitations for a legal claim by
plaintiff would have expired in late March, 2009.
The settlement was finalized between the Union and GM on
September 24, 2008, after which Tony Lovely, a union official,
notified plaintiff. Supra, at 9. Lovely avers that the conversation
with plaintiff took place sometime between September 24th and
September 26th of 2008. Id. In any event, Lovely’s notification
would have been before October 1, 2008, as Lovely indicated that the
latter would be the effective date for plaintiff’s retirement. Id.
suit on June 15, 2010, some fifteen months past the statute of
limitations deadline, under defendant’s position.
Plaintiff disagrees that the Union’s “final action” occurred in
late September 2008, but instead asserts that the final action
occurred on April 5, 2010, when the Union provided him with written
documentation of the grievance settlement.
(Resp. Br.  at 13-
14.) If so, the statute of limitations would have started running on
this latter date and would have expired around October 5, 2010,
meaning that the plaintiff’s present action, filed in June 2010,
would have been timely.5
The Court concludes that the Union’s action became final at the
end of September 2008, when plaintiff’s grievance was settled and he
was so notified.
The statute of limitations began to run when
plaintiff “knew or should have known of the union’s final action.”
Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558, 1559 (11th Cir.
Written notice of a union’s final action is not required,
where the union verbally informs plaintiff of the disposition of his
grievance. Howard v. Lockheed-Georgia Co., 742 F.2d 612, 614 (11th
In Howard, the Eleventh Circuit held that the fact that
plaintiff did not receive formal written notice of the union’s
Plaintiff also suggests that deadline for filing would have
even been later than the above date, as plaintiff contends that the
statute of limitations was tolled while internal union remedies were
available to him. (Id.)
September 22 action until the Union later wrote plaintiff on October
plaintiff was orally informed of his grievance withdrawal was the
Accord Cannon v. Dyncorp., 462 F. Supp. 2d 1190,
1204-05 (M.D. Ala. 2005)(final action took place when union told
plaintiff it was not going to file a grievance, and no further action
Plaintiff admits that he was notified of the settlement of his
grievance in late September of 2008. At that time, he knew that he
would receive retirement pay and knew that he would not receive the
SAP lump sum bonus payment of $62,500 or back pay that would have
been owing to him since the date of his firing on June 26, 2008 and
Thereafter, consistent with the settlement agreement, plaintiff began
receiving his retirement pay.
Plaintiff has not explained why the
absence of a written document confirming what plaintiff already knew
and was acting on, as he was apparently cashing his retirement
checks, was a barrier to his pursuit of either internal remedies or
Likewise, having now seen the written document, he has
not explained what there was in that document of which he was not
already aware in late September.
In short, with a start date of late September 2008, the statute
plaintiff’s complaint was not filed until June 15, 2010, which was
plaintiff’s claim is therefore time-barred.
Plaintiff has also suggested that he would have been entitled to
tolling for the time during which he could have gone through an
appeal process to challenge the Union’s acceptance of the settlement.
Stated another way, plaintiff’s position is that the Union’s action
was not deemed “final” until the time period for pursuing internal
union remedies had ended.
Plaintiff never pursued any internal
remedies, but the Court will assume that he is correct when he
contends that the statute of limitations was tolled during the period
of time that he had to appeal the Union’s settlement decision.6
The Union Constitution allowed a sixty-day time period for an
appellant first becomes aware, or reasonably should have become
aware, of the alleged action or decision appealed.”
Art. 33, §§ 4(b), (c), attached to Pl.’s Dep. .)
As noted, the
Court has already concluded that the plaintiff would have been aware
This assumption may not be warranted, however, as there is
some case authority indicating that tolling can arise only when the
employee actually pursues internal remedies. See, e.g., Dunleavy v.
Local 1617, 814 F.2d 1087, 1090-91 (6th Cir. 1987)(“so long as a
union member is engaged in a good faith attempt to exhaust his
internal remedies..., the six-month period of limitations is
tolled.”). At any rate, the Court need not decide this question.
of the decision to be appealed--the settlement decision--in late
September 2008. Accordingly, plaintiff would have had sixty days, or
until late December 2008, in which to have filed his internal appeal
of the Union’s decision to accept the settlement.
That tolling only
buys the plaintiff sixty days,7 however, and his lawsuit was filed
limitations would have expired in late June 2009. Again, plaintiff’s
complaint was not filed until June 2010.
For all the above reasons, the Court GRANTS summary judgment to
defendants, based on the expiration of the statute of limitations
prior to the filing of plaintiff’s present lawsuit.
judgment would still be appropriate because plaintiff failed to
exhaust his internal union remedies.
In order to pursue a Section
301 action, an employee is required to exhaust all contractual
Stated another way, the Union’s action did not become final
until the time to seek an internal appeal had passed, which would be
sixty days after plaintiff knew that the grievance settled.
Shivers v. IBEW Local Union 349, 262 Fed. App’x 121 (11th Cir.
2008)(final union action occurred when union adversely ruled on
employee’s grievance and employee did not seek timely appeal of this
decision within time frame set forth in Union Constitution);
Youngblood v. Potter, 262 F. Supp. 2d 1309, 1315 (M.D. Ala.
2003)(“Absent the filing of an appeal of the Step 1 decision, the
[employer’s] decision at Step 1 and the Union’s actions in assisting
with the Plaintiff’s grievance became final actions on September 9,
2001, because the grievance was deemed to be waived.”).
Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965).
This exhaustion requirement also generally applies to internal union
appeal procedures provided by a union constitution.
451 U.S. 679, 681 (1981).
Clayton v. UAW,
The undisputed facts show that plaintiff
did not exhaust his available contractual remedies under the Union
Article 32, Section 1 of the UAW Constitution permits a member
to appeal “any action, decision or penalty by” a “Local Union, or any
of its units, committees, officers, committee persons or stewards.”
(See Union Const., Art. 32, § 1.)
The UAW Constitution offers four
levels of internal appeals that must be exhausted before resorting to
(Id. at Art. 33, § 5.)8
Plaintiff complains now about
the actions of the local Union and its representatives, but he never
filed an internal appeal, which would have been the appropriate
vehicle to voice his objections.
As such, he has failed to fully
exhaust his remedies and his claims should be barred.
Plaintiff concedes that, generally speaking, an employee is
required to exhaust administrative remedies before pursuing a suit
against his union or employer.
He argues, however, that the Court
“It shall be the duty of any individual or body, if aggrieved
by any action, decision or penalty imposed, to exhaust fully the
individual or body’s remedy and all appeals under this Constitution
and the rules of this Union before going to a civil court or
governmental agency for redress.” Id.
should exercise its discretion to excuse the exhaustion requirement.9
Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 329-30
(1969)(the exhaustion requirement is subject to exceptions when a
“doctrinaire application of the exhaustion rule would defeat the
overall purposes of federal labor relations policy.”).
whether to excuse a failure to exhaust internal union procedures,10
a court should consider at least three factors:
first, whether union officials are so hostile to the employee
that he could not hope to obtain a fair hearing on his claim;
second, whether the internal union appeals procedures would be
inadequate either to reactivate the employee's grievance or to
award him the full relief he seeks under § 301; and third,
whether exhaustion of internal procedures would unreasonably
delay the employee's opportunity to obtain a judicial hearing on
the merits of his claim.
As a prerequisite to excusing the exhaustion requirement, a
union member must actually attempt to utilize the internal process.
Jimenez v. Collier Transit Mgmt., Inc., 337 Fed. App’x 804, 808 (11th
Cir. 2009)(“To claim futility, the employee may not simply assert
that his use of the grievance procedures would have been futile: he
must ordinarily at least have attempted to use them.”)(emphasis in
While plaintiff did not fully complete the grievance
appeal process, he did file a grievance.
Exhaustion is also excused if the employer repudiates the
grievance machinery or the union wrongfully refuses to process a
grievance. Pyles v. United Air Lines, Inc., 79 F.3d 1046, 1052-53
(11th Cir. 1996)(“Employees can avail themselves of remedies in
federal court without exhausting administrative remedies if their
employer repudiates the grievance machinery or the union wrongfully
refuses to process a grievance.”). Plaintiff does not appear to rely
directly on these exceptions to the exhaustion requirement, nor do
they appear to be applicable. See Rabalais v. Dresser Indus., Inc.,
566 F.2d 518, 520 (5th Cir. 1978)(“An employer can obviously take a
stance contrary to that of the employee during the grievance process
without being deemed to have repudiated that process.”)
Radar v. United Transp. Union, 718 F.2d 1012, 1014 (11th Cir.
1983)(citing Clayton, 451 U.S. at 689).
Plaintiff argues that the
Court should excuse his failure to seek administrative remedies
settlement agreement and because pursuing these internal remedies
would have unreasonably delayed plaintiff’s opportunity to obtain a
judicial hearing on the merits of the instant claim.
Neither argument is persuasive.
The internal union appeals
process would have clearly permitted plaintiff to challenge the
Union’s decision to settle, and if successful, plaintiff could have
obtained monetary relief akin to what he now seeks in the present
Article 33 of the UAW Constitution provides four levels of
appeal for “any action, decision or penalty by” a “Local Union.”
(Union Const., Art. 33, § 1.)
The first level of appeal would have
been to the UAW Local 10 membership, and then to the UAW, and then to
the International Executive Board, and finally to the Convention
Appeals Committee or where appropriate the Public Review Board. (See
In addition, to back pay and the SAP lump sum bonus,
plaintiff also seeks punitive damages and attorney’s fees. Punitive
damages are not available in a Section 301 breach of the duty of fair
representation claims. See Leach v. Pan Am. World Airways, 842 F.2d
285, 288 (11th Cir. 1988), disapproved on other grounds in
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S.
558, 563 n.2 (1990).
Whether internal union remedies would have
provided for such damages is thus irrelevant.
Union Const., Art. 33, § 2(a).)12
The Public Review Board and
Convention Appeals Committee are authorized to order UAW or its
Locals to pay money damages to an aggrieved member and order the
processing of a grievance that was wrongfully disposed of.
Wilson Aff.  at ¶¶ 12-14, Ex. 3.)
The adequacy of the Union’s
internal remedies undermines plaintiff’s request that he be excused
from exhausting these remedies.
Compare Barrington v. Lockheed
Martin, 483 F. Supp. 2d 1154, 1164-65 (M.D. Fla. 2007)(excusing
failure to exhaust internal appeals where CBA would not permit Union
to give plaintiff complete relief she sought: assignment of a new
union representative, reopening of arbitration, and designation of a
unreasonably delayed plaintiff’s opportunity to obtain a judicial
hearing on the merits of his claim.
Because plaintiff waited almost
21 months to file this lawsuit, he can hardly complain now about any
delay that an internal appeals process might have created. Oliver v.
Local No. 1261 United Transp. Union, 587 F. Supp. 3 (N.D. Ga.
“In any challenge to the handling or disposition of a
grievance: Where the challenge is against a Local Union
committeeperson, steward, Bargaining Committee, officer or other
Local Union official the levels of appeal are first to the unit of an
Amalgamated Local Union, then to the Union; then to the International
Executive Board and then to the Convention Appeals Committee, or
where appropriate the Public Review Board.”
1984)(exhaustion required where no evidence of unreasonable delay,
given that plaintiff waited nearly two years after learning that
grievance would not be pursued before filing suit).
In a further attempt to evade the exhaustion requirement,
plaintiff argues that exhaustion is not required because proceeding
with administrative remedies would have been “wholly futile.”
Glover, 393 U.S. at 330; Pyles, 79 F.3d at 1053 (recognizing an
administrative remedies would have been “wholly futile.”). Plaintiff
argues futility based on his union representative’s opinion that any
further appeal would be unsuccessful.
(Resp. Br.  at 23.)
The pessimism of his union representative, however, does not
excuse plaintiff from trying to undo the settlement by utilizing
procedures set up for that very objective.
See Ryan v. General
Motors Corp., 929 F.2d 1105, 1110 (6th Cir. 1989)(“It is well-settled
that the opinion of a union representative cannot be construed as a
waiver of the UAW’s constitutional appeal requirements.”).
succeeded, but whether the employee could have availed himself of the
grievance procedure. Mason v. Cont’l Grp., Inc., 763 F.2d 1219, 1224
(11th Cir. 1985).
Plaintiff also contends that, without a written confirmation of
the terms of the settlement, he could not have proceeded with an
appeal within the designated 60-day time limit.
(Resp. Br.  at
18-19.) Article 33, Section 4 of the UAW Constitution, however, only
requires plaintiff to bring any appeal within 60 days “from the time
he first became aware, or reasonably should have become aware, of the
alleged action or decision appealed.”
(Union Const., Art. 33, § 4.)
There is no requirement of a written document.
Again, plaintiff was
well aware of the terms of the settlement.
That is, plaintiff
accepted his retirement benefits, which would have been denied to him
had there not been a settlement.
He chose to accept the positive
parts of that settlement–-the retirement benefits–-but, with this
lawsuit, he now seeks to renege on his implicit quid pro quo:
relinquishment of the SAP bonus and back pay.
Finally, plaintiff argues that exhaustion is excused because the
Union acted discriminatorily, dishonestly, and in an arbitrary or
perfunctory fashion. DelCostello, 462 U.S. at 164 (when a union acts
in a “discriminatory, dishonest, arbitrary, or perfunctory fashion”
that is sufficient to breach its duty of fair representation, an
Whether the Union behaved in this fashion also bears
on whether it has breached the duty of fair representation.
v. Sipes, 386 U.S. 171, 190 (1967)(a breach of the statutory duty of
fair representation occurs only when a union’s conduct toward a
member is arbitrary, discriminatory, or in bad faith.).
reasons explained below, plaintiff has failed to demonstrate that the
Union behaved in a discriminatory, dishonest, or arbitrary fashion.
As such, summary judgment is appropriate.
THE UNION'S DUTY OF FAIR REPRESENTATION
representation, the Eleventh Circuit has stated that:
a union is allowed considerable latitude in its
representation of employees. The grievance and arbitration
process is not conducted in a judicial forum and union
representatives are not held to strict standards of trial
Cases are uniform in holding that neither
negligence on the part of the union nor a mistake in
judgment is sufficient to support a claim that the union
acted in an arbitrary and perfunctory manner. The union is
accorded a “wide range of reasonableness” in the exercise
of its discretion, and although it is circumscribed by a
duty to act with “complete good faith and honesty of
purpose,” the employee’s burden “remain(s) a substantial
one.” Nothing less than a demonstration that the union
acted with reckless disregard for the employee’s rights or
was grossly deficient in its conduct will suffice to
establish such a claim.
Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206-07 (11th Cir.
See Turner v. Air Transp. Dispatchers'
Ass'n, 468 F.2d 297, 300 (5th Cir. 1972)(“A union's broad discretion
in prosecuting grievance complaints includes not only the right to
settle the dispute short of arbitration but also to refuse to
initiate the first steps in the appeal procedure when it believes the
grievance to be without merit.”)13; Barrington, 257 Fed. App’x at 156.
Taaffe v. Bellsouth Telecomms., Inc., 204 Fed App’x 823, 825 (11th
Cir. 2006)(“The issue is not whether the union’s interpretation of
the facts and contract language was correct, but whether it was
Plaintiff argues that the Union failed to adequately represent
him before, during, and after his 76(a) interview with General
First, plaintiff argues that Willis failed to
adequately prepare him before his interview, which prevented him from
offering an explanation for his lengthy lunch breaks.
Br.  at 20.)
Next, he argues that Willis failed to adequately
represent him during his interview because Willis did not assert
surrounding plaintiff’s termination.
(Pl.’s Resp. Br.  at 20.)
Plaintiff also argues that the Union failed to adequately represent
him after his termination because the Union settled his case quickly,
due to Willis’ impending retirement; was uncooperative in informing
him of the status of his grievance proceedings; failed to respond to
several attempts by plaintiff to contact the Union about information
regarding his grievance proceedings; never consulted with plaintiff
Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
termination being a “major case;” and never provided him with
documentation of the settlement agreement, which prevented him from
knowledgeably appealing internally within the union.
Br.  at 20-21.)
arbitrarily or in bad faith prior to the 76(a) interview.
cites no authority for the proposition that a union representative
must ascertain detailed facts about an employee’s situation prior to
a disciplinary interview with an employer.
Here, both plaintiff and
Willis became aware of the allegations shortly before the interview.
Willis learned the basic charges from General Motors, met with
plaintiff, and told him how to conduct himself.
(Willis Dep. 
arbitrary or in bad faith.
The Union also did not act arbitrarily or in bad faith during
the 76(a) interview.
Willis made objections on plaintiff’s behalf
and questioned him in an effort to develop the evidence. (Pl.’s Dep.
 at 120-121.) Plaintiff even agreed that Willis tried to protect
instruction to plaintiff that he should only answer the questions
asked of him, without elaboration, which plaintiff argues prevented
him from explaining his lengthy lunch breaks, was an arguably
reasonable strategy to prevent plaintiff from opening himself up to
See Barrington, 257 Fed. App’x at 156-57 (union
representative’s determination that employee should not testify is
“reasonable strategy” to prevent opening door to other issues).
The Union’s behavior after plaintiff’s termination was also not
discriminatory, arbitrary, or in bad faith.
Willis followed through
with his obligation to investigate and determine the merits of
Turner, 468 F.2d at 299 (“the duty of fair
representation includes an obligation to investigate and to ascertain
the merit of employee grievances”). Willis fulfilled his obligations
by determining whether Zefo’s testimony that she personally viewed
someone other than plaintiff swiping his card was credible. There is
no evidence that Willis acted in a “perfunctory” fashion by shuttling
plaintiff’s claim through the grievance process without any concern
for its resolution.
See Massey v. United Transp. Union, 868 F. Supp.
1385, 1394 (S.D. Ga. 1994)(“To show that the union acted in a
‘perfunctory’ fashion, merely shuttling an employee’s claim through
the grievance process with no concern for its resolution, [plaintiff]
must demonstrate ‘that the union ignored the grievance, inexplicably
failed to take some required step, or gave the grievance merely
The Union also provided plaintiff with adequate details of his
settlement, even though it was not in written form.
Norandal USA, Inc., No. CV92-PT-1490-M, 1993 WL 388638, at *7 (N.D.
Ala. May 17, 1993)(mere failure to provide an employee with a copy of
a grievance does not constitute a violation of a Union’s duty of fair
representation); Rasheed v. Int’l Paper Co., 826 F. Supp. 1377, 1388
(S.D. Ala. 1993)(union’s delay in providing employee with information
about his grievance, after it had already been litigated before the
arbitrator, could not “conceivably amount to a breach of the Union’s
duty of fair representation”).
As for the actual settlement decision, “[a] union's broad
discretion in prosecuting grievance complaints includes not only the
right to settle the dispute short of arbitration but also to refuse
to initiate the first steps in the appeal procedure when it believes
the grievance to be without merit.”
See Turner, 468 F.2d at 300.
Further, a duty of representation “does not confer an absolute right
on an employee to have his complaint carried through all stages of
the grievance procedure”.
Id. at 299.
Willis met with management on numerous occasions in an effort to
obtain a settlement for plaintiff.
Willis’ belief that there was
sufficient evidence supporting the charges against plaintiff and that
substantial benefit of the settlement that Willis was able to
negotiate--a retention of plaintiff’s pension, health, and life
reasonableness’ as to be irrational.”
Air Line Pilots Ass’n, Int’l
v. O’Neill, 499 U.S. 65, 67 (1991)(citation omitted).
At worst, the
negligence...would not state a claim for breach of the duty of fair
Rawson, 495 U.S. at 372-73; Papavaritis v. Comm’cn
Workers of Am., 772 F. Supp. 604, 607 (S.D. Fla. 1991)(“mere fact
that union was ineffective or did not zealously prosecute the
plaintiff’s claim is insufficient, without more, to support a fair
The settlement decision did not breach the
duty of fair representation.
For the above reasons, plaintiff has not demonstrated the
existence of a genuine issue of material fact with respect to the
adequacy of the Union's representation of plaintiff.
discriminatory, or in bad faith.
That is, there
Accordingly, summary judgment is
also warranted on the merits of plaintiff’s breach of the duty of
fair representation claim.
Both defendants’ motions for summary
judgment should be GRANTED on the grounds that plaintiff failed to
exhaust internal remedies.
The Union’s Motion for Summary Judgment
is also due to be GRANTED on the merits.
DEFENDANT GENERAL MOTORS’ ALLEGED BREACH OF CONTRACT
To prevail on a hybrid claim, a plaintiff must demonstrate both
that the CBA was breached and that the union breached its duty of
Aldred v. Avis Rent-A-Car, 247 Fed. App’x 167,
171 (11th Cir. 2007).
Thus, the failure of plaintiff’s duty of fair
representation claim dooms his breach of contract action against
defendant General Motors.
UPS, Inc. v. Mitchell, 451 U.S. 56, 62
(1981)(duty of fair representation claim is “indispensable predicate”
for hybrid claim).
Defendant General Motors’ Motion for Summary
Judgment  should also be GRANTED on the merits.
For the foregoing reasons, defendant General Motors’ Motion for
Summary Judgment  is GRANTED and the Union’s Motion for Summary
Judgment  is GRANTED.
The clerk is directed to close the case.
SO ORDERED, this 23rd day of March, 2012.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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