Opinion
1:02-CV-1393-JDT
April 3, 2003
John B. LaRue, Muncie, IN.
John C. Theisen, THEISEN ASSOCIATES, LLC, Ft Wayne, IN.
Eric C. Scroggins and Susan B. Tabler, ICE MILLER, Indianapolis, IN.
ENTRY ON MOTION TO DISMISS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case is brought under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and is before the court for ruling on a Motion to Dismiss.
The Allegations The Complaint alleges that the Defendant DaimlerChrysler Corporation breached a collective bargaining agreement (CBA) between the Defendant and the United Automobile, Aerospace and Agricultural Implement Workers of America and UAW Local 371. The Plaintiffs bring their claims under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Complaint makes the following allegations.
The Defendant violated work opportunity provisions in the CBA and other agreements with the Union. The Union filed two grievances concerning these alleged breaches, grievance number 02-90, attached to the Complaint as Exhibit E, and grievance number 02-122, attached as Exhibit F. On May 29, 2002, the Union submitted notice of appeal of the grievances to the Appeal Board Step of the Grievance Procedure, a copy of which is attached to the Complaint as Exhibit G. Since on or about May 29, 2002, the Plaintiffs have requested to be informed of the status of the grievances, but have not been provided any information from the Union other than that the grievances are "being taken care of." (Compl. ¶ 16.)
The Plaintiffs filed their Complaint on September 6, 2002. On November 26, 2002, the Defendant filed a Motion to Dismiss, contending that this action should be dismissed because the Plaintiffs have failed to exhaust their contractual remedies under the CBA as their grievances are still pending. The Plaintiffs have filed a response and, apparently, an affidavit in response, and the Defendant has filed a reply.
Another action filed on October 25, 2002, was consolidated with this one as they involve the same Defendant, counsel and issues.
Analysis
When considering a Rule 12(b)(6) motion, the court takes the Complaint's factual allegations as true and views them in the light most favorable to the Plaintiffs. Thompson v. Ill. Dep't of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002). The court's consideration is limited to the pleadings, that is, the complaint and any attached exhibits. Id. (citing Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.")).
Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965), held that an employee alleging a violation of a collective bargaining agreement between his union and employer must attempt to use the grievance procedure contained in the agreement before bringing a § 301 suit. Id. at 652-53; see also Clayton v. Int'l Union, United Auto., Aerospace Agric. Implement Workers of Am., 451 U.S. 679, 681 (1981); Stevens v. Northwest Ind. Dist. Council, United Broth. of Carpenters, 20 F.3d 720, 731 (7th Cir. 1994); Macon v. Youngstown Sheet Tube Co., 698 F.2d 858, 860 (7th Cir. 1982). There are a few exceptions to this rule: where the employer's conduct amounts to a repudiation of the contract, where the union has wrongfully refused to process a grievance, and where exhaustion would be a futility. See Macon, 698 F.2d at 860.
The Defendant argues that the Complaint should be dismissed because the Plaintiffs have not exhausted their contractual remedies under the CBA. The Plaintiffs respond that they have pled exhaustion, and, in any event, they fall under the exception to the exhaustion requirement where the CBA has been repudiated or the Union no longer intends to pursue the grievance.
In support of their claim to have pled exhaustion, the Plaintiffs rely on their allegations that the appeal of the grievances of the Defendant's alleged breach of the CBA have been pending since May 29, 2002, they requested information regarding the status of the grievances and were provided no information, other than that the grievances were being "taken care of." Rather than showing exhaustion, however, these alleged facts show that the grievances are still pending and the Plaintiffs have not exhausted their contractual remedies under the CBA.
The Plaintiffs argue that the failure to decide the appeal of the grievances within the time allowed under the CBA amounts to a repudiation of the CBA. They have not pled sufficient facts to invoke the repudiation or futility exceptions to the exhaustion requirement, however. See Drake Bakeries, Inc. v. Local 50, Am. Bakery Confectionary Workers Int'l, 370 U.S. 254, 262-63 (1962) (concluding that mere nonperformance of a contractual obligation does not support an inference that the arbitration obligation has been repudiated); Am. Postal Workers Union v. United States Postal Serv., 126 F. Supp.2d 1, 4 (D.D.C. 2000) (concluding that delays in the grievance/arbitration process were not "tantamount to a repudiation of" the process as to excuse exhaustion of the grievance/arbitration procedure); Naval v. Fernandez, No. 97-CV-6800, 1998 WL 938942, at *7 (E.D.N.Y. Nov. 28, 1998) (failure to process grievance in timely manner did not amount to repudiation of grievance procedure).
However, the Plaintiffs have submitted the affidavit of Tony Riggs in which he states that a union representative allegedly indicated that the grievance of the re-employment rights under the CBA "was a `dead' issue" and "there would be no further negotiation or discussion of the grievance relating to this issue." Though the court could convert the motion to dismiss to a motion for summary judgment and consider the Riggs affidavit, see Fed.R.Civ.P. 12(b), there would be nothing gained by conversion as the affidavit is replete with hearsay, which is inadmissible and insufficient to withstand a motion for summary judgment. Fed.R.Evid. 801(c) (hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"); Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001). This leaves the Plaintiffs with their Complaint, the allegations of which show that they have not exhausted their contractual remedies.
Finally, the Plaintiffs contend that they were required to file their Complaint to avoid a potential statute of limitations bar. The six-month statute of limitations on a § 301 claim begins to run "from the time a final decision on a plaintiff's grievance has been made or from the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, that no further action would be taken on his grievance." Chapple v. Nat'l Starch Chem. Co. Oil, 178 F.3d 501, 505 (7th Cir. 1999). Given the Complaint's allegations, it seems the limitations period has not yet begun to run on the Plaintiffs' claims.
Conclusion
DaimlerChrysler's Motion to Dismiss will be GRANTED and the Complaint will be DISMISSED WITHOUT PREJUDICE.
ALL OF WHICH IS ORDERED.