Dаle GARRISH, et al., Plaintiffs-Appellants, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; Local 594 International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America; and General Motors Corporation, Defendants-Appellees.
No. 03-2468
United States Court of Appeals, Sixth Circuit.
Argued: June 8, 2005. Decided and Filed: Aug. 5, 2005.
417 F.3d 590
The events in question occurred in August 1998. At that time, it was clearly established that, before tackling a suspect to the ground, an officer should give the suspect an opportunity to voluntarily surrender. Cf. Barlow v. Ground, 943 F.2d 1132 (9th Cir.1991) (finding that tackling an arresteе for merely knocking over a sign and placing him in pain compliance hold was excessive); McNew v. Pleasant, 1992 WL 162255 (N.D.Ill.1992) (unpublished) (finding that, where officer failed to identify himself or ask for the suspect‘s cooperation, the suspect “could have been stopped by simply grabbing him more firmly instead of immediately tackling him and kneeing him in the back“); and Vathekan v. Prince George‘s County, 154 F.3d 173 (4th Cir.1998) (recognizing a right to be free from attacks by police dogs without a verbal warning) (citing Kopf v. Wing, 942 F.2d 265 (4th Cir.1991)).
Regardless of the status of the law in August 1998, I believe that reasonable officers would know, even without specific guidance from the courts, that tackling a woman who is merely resisting an unlawful arrest in her own home, without giving her fair warning, is unconstitutional. Thus, I place this case under the “obvious” rubric established by the Supreme Court in Brosseau and conclude that a body of relevant case law is not necessary.
Accordingly, I would affirm the district court‘s denial of summary judgment to both officers.
Before: SILER and GIBBONS, Circuit Judges; WILLIAMS, District Judge.*
SILER, Circuit Judge.
In this action brought under Section 301 of the Labor Management Relations Act (“LMRA“),
BACKGROUND
Plaintiffs are GMC employees who work in its Pontiac, Michigan Facility and members of UAW and Local 594.2 GMC and UAW are parties to a National Collective Bargaining Agreement (“NCBA“), while Local 594 and the Facility are parties to a Local Collective Bargaining Agreement (“LCBA“). These two сollective bargaining agreements govern the terms and conditions of Plaintiffs’ employment. The NCBA specifically governs employment rights, including wages, hours of employment, and working conditions. The LCBA permits its parties to negotiate those matters not covered by the NCBA.
In early 1997, Local 594‘s Shop Committee renegotiated the LCBA between GMC management and the Facility. Jay Campbell was the Shop Committee Chairman in charge of the renegotiation and was assisted by Donny Douglas, a UAW International Representative assigned to UAW‘s GMC Department. These 1997 negotiations pertained to the settlement of specific written demands and grievances immaterial to this appeal. On April 23, 1997, Local 594‘s members began a strike at the Facility over these unresolved demands and grievances. This strike lasted eighty-seven days, finally ending in July 1997. Thereafter, Plaintiffs asserted that although GMC met Local 594‘s demands within thе strike‘s first month, the union fraudulently prolonged the strike for two more months. Plaintiffs claimed that the union extended the strike to (1) require GMC to hire Gordon Campbell (Jay Campbell‘s son) and Todd Fante (a friend of Donny Douglas‘s son) and (2) obtain approximately $200,000 in payoffs from GMC to Local 594‘s upper-level officials.
All grievances against Gordon Campbell and Fante, however, were withdrawn by Skilled Trades Zoneman William Coffey in February 1999. On February 22, 1999, Garrish and other members of Local 594 (including some Plaintiffs) appealed the withdrawal of the grievances. On March 30, 1999, Plaintiffs’ appeal wаs held “to be filed in an untimely manner in accordance with Article # 33 of the [UAW] International Constitution.” On April 21, 1999, Garrish protested to Jay Campbell that the appeal was timely and must be heard. Jay Campbell never responded, so Garrish filed his appeal with the membership of Local 594. Although again considered untimely, on February 1, 2000, the membership ultimately concluded that the appeal was timely filed. Plaintiffs were very concerned that any internаl appeal would be futile—Garrish opined that his “appeal has been delayed literally years under the guise of untimeliness.”
Ultimately, on August 7, 2000, Plaintiffs filed this action against Defendants pursuant to
After many other instances of procedural wrangling and several years after the grievances were originally filed, the district court granted Defendants’ motion for summary judgment. It concluded that Plaintiffs’ claims were barred by the statute of limitations because they failed to timely file their complaint.4
We review the district court‘s grant of summary judgment de novo. Lautermilch v. Findlay City Sch., 314 F.3d 271, 274 (6th Cir.2003). “Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see
“A hybrid § 301 suit implicates the interrelationship among a union member, his union, and his employer.” Vencl v. Int‘l Union of Operating Eng‘rs, Local 18, 137 F.3d 420, 424 (6th Cir.1998) (citation omitted). Jurisdiction arises under
A six-month statute of limitations applies to Plaintiffs’ hybrid § 301 action. See Martin v. Lake County Sewer Co., 269 F.3d 673, 677 (6th Cir.2001) (citing DelCostello v. Int‘l Bhd. of Teamsters, 462 U.S. 151, 169 (1983)). “Such a claim accrues when an employee discovers, or should have discovered with exercise of due diligence, acts giving rise to the cause of action.” Wilson v. Int‘l Bhd. of Teamsters, 83 F.3d 747, 757 (6th Cir.1996). While “[T]he determination of the accrual date is an objective one: ‘the asserted actual knowledge of the plaintiffs is not determinative if they did not act as reasonable persons and, in effect, closed their eyes to evident and objective facts concerning the accrual of their right to sue.‘” See Noble v. Chrysler Motors Corp., 32 F.3d 997, 1000 (6th Cir.1994). Plaintiffs are “not required to sue on a hybrid claim until ... [they] reasonably should know that the union has abandoned [their] claim.” Wilson, 83 F.3d at 757. Plaintiffs filed their complaint on August 7, 2000; accordingly, it was timely filed only if their claims accrued after February 7, 2000. If Plaintiffs’ claims accrued before then, their complaint is time-barred unless they did not discover, or could not have discovered through due diligence, that Defendants’ acts causing the alleged injuries occurred prior to February 7, 2000.
Plaintiffs allege two counts in their hybrid § 301 claim: (1) GMC breached thе NCBA by hiring Gordon Campbell and Fante and the union breached the duty of fair representation by protracting the strike until GMC agreed to hire them; and (2) GMC‘s purported payoffs to Local 594 officials were connected to the union‘s extension of the strike.
1. The hiring of Gordon Campbell and Todd Fante.
Plaintiffs first argue that their timely pursuit of internal union remedies (beginning with their August 1997 grievances) capable of affording them some relief tolled the statute of limitations. Before bringing a hybrid § 301 claim, an employee “first must exhaust any grievance ... remedies provided in the collective-bargaining agreement.” Robinson v. Cent. Brass Mfg. Co., 987 F.2d 1235, 1239 (6th Cir.1993).
The record is saturated with evidence that Plaintiffs discovered, оr should have discovered through due diligence, Defendants’ acts giving rise to this action well before February 7, 2000. For instance, Garrish testified in his September 1997 deposition that Donny Douglas admitted that he delayed the strike‘s settlement so that Gordon Campbell and Fante would be hired. Garrish also testified that Local 594 kept its members on strike so that these two individuals would be hired. Next, Plaintiffs were aware of a leaflet describing how Douglas maintained that he рrolonged the strike to get Gordon Campbell hired. Further, in June 1999, Plaintiff Janice Austin filed an unfair labor practice charge against the union with the National Labor Relations Board. She claimed that Local 594 prolonged the strike so that GMC would hire the union officials’ relatives. Plaintiffs filed grievances as to these same employees in August 1997 and acknowledged that they knew the facts surrounding these individuals within days of their hiring date. Garrish expressly testified that “[i]t was always the same thing [during the 1997 strike and negotiations]: the kids and money.” Plaintiffs nevertheless contend that the statute of limitations was tolled.
Plaintiffs appealed their August 1997 grievances through February 2002.5 According to Plaintiffs, all these grievances tolled the statute of limitations since they would provide “some relief.” Despite this argument, however, Plaintiffs have repeatedly conceded that any appeal was futile. For instance, Count V of Plaintiffs’ first amended complaint is labeled “USE OF DEFENDANT UAW‘S APPEAL PROCEDURE WOULD BE FUTILE.” Garrish testified that he knew early on that the union would not process his grievance and it would be futile to do so, and he was not surprised and “could have gambled everything” that the UAW would find his appeal untimely because of fraud and collusion between various union and GMC officials.6
Although Plaintiffs also sought the removal of Gordon Campbell and Fante through this lawsuit, they nonetheless asserted that the other issues could not be resolved through internal union procedures. While the removal of Gordon Campbell and Fante would constitute “some relief,” Plaintiffs have made it clear that their pursuit of internal union appeals would have been completely futile. See Robinson, 987 F.2d at 1242 (“Tolling the statute of limitations while a claimant pursues completely futile internal union remedies does not serve the federal interests discussed in DelCostello and Clayton [v. Int‘l Union, UAW, 451 U.S. 679 (1981)] and is unfair to the defendant.“). Moreover, Plaintiffs certainly cannot raise a genuine issue of material fact by relying on evidence that purportedly tolls the statute of limitations yet simultaneously acknowledge it is not even included in the record. Because Plaintiffs knew that no relief was availablе through an internal process, the statute of limitations was not tolled.8 See Darden v. Local 247, Int‘l Bhd. of Teamsters, 103 F.3d 129, 1996 WL 692095, at *2 (6th Cir.1996) (table) (per curiam).
2. The alleged payoff of union officials.
Plaintiffs also argue that a question of fact exists as to when they disсovered that the strike was prolonged so GMC would pay off union officials. Garrish insists that he did not learn this until mid-2000, when Local 594 Committeeman Mike Fitch told him that all union committeemen received money at the end of the strike. Despite these declarations in Garrish‘s subsequent affidavit, the record discloses that he knew in July 1997 that two union officials (Jay Campbell and William Coffey) had “receiv[ed] substantial money grievance settlements.” Garrish attempts to resоlve these discrepancies by contending that he did not learn all committeemen received $5,000 payoffs until July or August 2000.
Summary judgment was appropriate. Allegations of payoffs and strike prolongation began immediately after the 1997 strike ended. Plaintiff Gene Austin, the publisher of union opposition newsletter The Challenger, informed fellow union members that he “could no longer sit back and watch as our members were being used as pawns by the officers at the hаll to negotiate large settlements for themselves and get family members hired.” Gene Austin also agreed during his deposition testimony that he learned in September 1997 that Local 594‘s negotiators had abused their bargaining power to get large payments for Jay Campbell and William Coffey. Plaintiff Gerald McDonald testified that an inference arose that these payments were improper and unfair because Jay Campbell and Coffey vigorоusly defended their receipt of these large payments at the strike‘s conclusion. Furthermore, Garrish testified that, beginning in late 1997, he was familiar with numerous leaflets questioning the validity of these payments and the specific amounts some union officials received. Garrish conceded that he was exposed to literature in 1999 that union officials “abus[ed] the bargaining table” to “get payoffs for union officials and jobs for unqualified relatives[.]”
The vоluminous record is replete with examples of Plaintiffs’ knowledge of these alleged payoffs years before February 7, 2000. Illustrations include the following: Gene Austin wrote that “[w]hat we do know as a Membership is that some of the top negotiators during our 87 day strike have filled their pockets[.]“; leaflets advised “LEARN HOW TO BARGAIN FOR PERSONAL GAIN, GET YOUR KIDS A GOOD JOB, AND A POCKET FULL OF MONEY TO BOOT. LEARN HOW ABUSE OF POWER CAN WORK FOR YOU AND YOUR FRIENDS[.] INSTRUCTOR JAY ‘I‘M WORTH MORE’ CAMPBELL.“; “IT WAS NOT A STRIKE IT WAS A PAYOFF,” “Bill Campbell ... got $60,000. Jay Campbell ... got $40,000 and his kid an illegal job on skilled trades“; and Garrish testified
Moreover, there is no distinction between the terms “some” and “all” so as to create a genuine issue of material fact. Regardless of any $5,000 payments to Fitch and “all” other committeemen, Plaintiffs knew of these payoffs to other high-level union officials as early as 1997. See Ratkosky v. United Transp. Union, 843 F.2d 869, 873-74 (6th Cir.1988) (six-month statute of limitations began to run when plaintiffs “knew or should have known at that time that [the union] was unwilling to renegotiate the contract“). It is immaterial whether Garrish allegedly learned in mid-2000 that all committeemen received a payoff; rather, it is paramount that he (and the other Plaintiffs) knew in 1997 that the strike had been prolonged so high-level union officials would receive payoffs. See Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1178-79 (11th Cir.1997) (first reported series of problems starts statute of limitations running); Allen v. United Food & Commercial Workers Int‘l Union, 43 F.3d 424, 427-28 (9th Cir.1994) (plaintiffs knew or should have known of union misconduct when they learned thеir benefits were effectively eliminated). Fitch‘s purported confession to Garrish that “all” committeemen received payoffs only supplemented Plaintiffs’ collective knowledge.9 This claim is also time-barred.
3. Plaintiffs failed to state a cause of action under § 301 .
As an additional rationale for affirmance, two of Plaintiffs’ allegations may not be redressed pursuant to
AFFIRMED.