Ina KING, Plaintiff-Appellant, v. The NEW YORK TELEPHONE COMPANY, INC., and the Telephone Traffic Union (New York), Defendants-Appellees.
No. 277, Docket 85-7536
United States Court of Appeals, Second Circuit
Decided Jan. 28, 1986.
Argued Oct. 25, 1985.
Thus, appellant is correct that the Magistrate should have applied the substantive provisions of section 3579 and the procedural provisions of section 3580 to the instant restitutionary award. The Magistrate‘s vaguely stated award of restitution “if appropriate” is the kind of “occasional afterthought” approach to restitution that Congress wanted to end by its adoption of the new provisions.
The application of sections 3579 and 3580 would have had a substantial impact on the award. Appellant states that the Magistrate ordered him to pay the $10,000 back at the rate of fifty dollars per month. Section 3579(f)(2)(A), as noted above, would prohibit installments running beyond Kallash‘s three year probationary period.
The new provisions would also have had procedural effects. For example, section 3580 directs the court to consider a defendant‘s financial resources in making a restitutionary award. Appellant argues correctly that his own financial status should have been taken into account.6 He is incorrect, however, in asserting that the court should also have considered the “immense” resources of the bank to which the award was to be paid. The financial resources of the victim are not included in the list of factors to be weighed under section 3580(a).
The government agrees that a remand is appropriate to clarify the restitutionary award. We remand for the clarification that should result from the proper application of sections 3579 and 3580.
Harold J. Johnson, Brooklyn, N.Y. (Flamhaft Levy Kamins Hirsch & Booth, Brooklyn, N.Y., of counsel), for plaintiff-appellant.
Andrew M. Calamari, Bronx, N.Y. (Calamari & Calamari, Bronx, N.Y., of counsel), for defendant-appellee. The Telephone Traffic Union.
Before OAKES, NEWMAN and MINER, Circuit Judges.
MINER, Circuit Judge:
This action arises out of the alleged wrongful discharge of plaintiff-appellant, Ina King, by defendant-appellee, The New York Telephone Company, Inc. (“NYTEL“), and subsequent breach of the duty of fair representation by defendant-appellee, The Telephone Traffic Union (New York) (“Union“). Prior to answering the complaint, both defendants moved for summary judgment,
I. BACKGROUND
Ina King was an employee of NYTEL and a member of the Union from May of 1967 until January 18, 1982, when NYTEL terminated her employment. King immediately complained to the Union that her dismissal violated the collective bargaining agreement between NYTEL and the Union, and, on February 19, 1982, she requested the Union to institute grievance proceedings on her behalf.
The existing collective bargaining agreement between NYTEL and the Union established a four-step grievance procedure for resolving employee-management disputes. Article XV of that agreement provided that the Union could demand arbitration in the event that the grievance procedure was unsatisfactory in resolving the employee‘s complaint. In order to invoke the arbitration provision, however, the Union was required to demand arbitration in writing within thirty days after receipt of NYTEL‘s written denial of a step-four grievance.
NYTEL denied King‘s step-four grievance on October 1, 1982. More than six months later, on April 27, 1983, Union officials requested the Union Executive Board to seek arbitration of King‘s case. That request was approved, and the Union informed King in a letter dated June 28, 1983 that it would take her case to arbitration. After having made numerous inquiries regarding the arbitration, King met with Union officials on August 2, 1983, and learned for the first time that her step-four grievance had been denied on October 1, 1982. At the meeting, King and the Union each signed separate letters addressed to Mr. S.W. Johnson, NYTEL‘s Division Staff Manager, Labor Relations, demanding arbitration. On August 25, 1983, Johnson sent a letter to the President of the Union refusing to arbitrate the dispute because the time in which to request arbitration had expired. King was not informed that NYTEL had rejected the demand for arbitration until October 6, 1983, when she learned of Johnson‘s August 25th letter to the Union.
King commenced the instant action on February 24, 1984, alleging wrongful discharge by NYTEL under section 301 of the Labor-Management Relations Act (“LMRA“),
II. DISCUSSION
In a hybrid section 301/fair representation action, the six-month statute of limitations provided by section 10(b) of the National Labor Relations Act (“NLRA“),
Applying the Santos standards to the instant case, Judge McLaughlin found that King could have successfully commenced this action against both NYTEL and the Union in November of 1982, when the thirty-day period to demand arbitration expired, and he concluded that “the absolute latest date on which [King] knew, or in the exercise of reasonable diligence should have known, that her claims against the Union and the Company accrued was August 2, 1983.” On the latter date, King met with Union officials and learned that her step-four grievance had been denied ten months earlier. Thus, according to Judge McLaughlin, as of August 2nd, King knew or reasonably should have known that her Union had breached its duty of fair representation, if at all, some nine months previously. Accordingly, he granted both defendants’ motions for summary judgment.
On the present record, however, several factual questions remain unresolved. For example, in order to sustain Judge McLaughlin‘s conclusion that King knew or should have known on August 2nd that her claims had accrued, we would be required to adopt two fundamental assumptions. First, we would have to assume that King was aware or reasonably should have been aware on August 2nd that there was a thirty-day period following the denial of her step-four grievance within which arbitration could be demanded. Second, we would be required to infer that King, armed with knowledge of the thirty-day period, knew or reasonably should have known that the Union had done nothing to preserve its right to demand arbitration. The record before us, however, does not command either of these suppositions. Indeed, construing the facts most favorably to King, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975), it appears that the Union represented to her both in its June 28th letter and again on August 2nd that it could successfully demand arbitration of her grievance. Moreover, even if King was aware of the thirty-day period, a fact-finder still might conclude that it was reasonable for her to rely on the Union‘s representations in its June 28th letter that “it would take [her] case to arbitration.” Affidavit of Ina King at ¶ 12.
According to her version of the events, King had no reason to believe that she had sufficiently exhausted her remedies under the collective bargaining agreement because the Union, which was serving as her representative in the grievance procedure, advised her that it would take the matter to arbitration. See Schum v. South Buffalo Railway, 496 F.2d 328, 331-32 (2d Cir.1974); cf. Bowen v. United States Postal Service, 459 U.S. 212, 225 & n. 14, 103 S.Ct. 588, 596 & n. 14, 74 L.Ed.2d 402 (1983) (“the union plays a pivotal role in the [grievance] process since it assumes the responsibility of determining whether to press an employee‘s claims” and usually holds the power to supervise the procedure). An employee‘s knowledge of the limitations period in a collective bargaining agreement is a question of fact as indicated in Schum v. South Buffalo Railway, 496 F.2d at 331 & n. 4: “Normally employees do not have the expertise, knowledge or experience to interpret the complicated substantive and procedural provisions of a collective bargaining agreement.” Indeed, it would be incongruous if the Union‘s own dilatory conduct could provide it with a defense to this lawsuit, particularly in light
The authorities relied upon by NYTEL and the Union do not compel a different result. In Santos, we stated that “[t]he record adequately shows that by the fall of 1972, appellants were aware that the [Union] was not proceeding in good faith ....” and yet the complaint in that case was not filed until September of 1975. 619 F.2d at 965, 970. In contrast, the facts here indicate that King reasonably believed the Union was proceeding in good faith up until she received notification on October 6, 1983 that NYTEL refused to submit the dispute to arbitration because the demand for it was untimely. See Gish v. United Electrical, Radio & Machine Workers, Local 205, 588 F.Supp. 495 (D.Mass.1983) (plaintiff‘s claims against employer and union accrued when she was effectively informed that her employer had refused to arbitrate her grievance on the ground that the union had not timely requested arbitration).
In Bayliss v. New York Telephone Co., No. 82-CV-4367, slip op. at 4 (E.D.N.Y. Feb. 3, 1984), the court merely held that it was unreasonable for the plaintiff to rely upon “vague oral assertions of low level officials of the local union” that the matter was to be arbitrated in light of a letter from a high-level official of the union rejecting plaintiff‘s request to demand arbitration. Indeed, the Bayliss court explicitly stated that the plaintiff‘s claims accrued on the date when the union sent a formal notice to him that it would not arbitrate his grievance. In the instant case, the Union did not give King conflicting signals; rather, it simply represented to her that it would take the matter to arbitration.
Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984), relied on by the dissent, is inapposite since it involved an allegation that the Union failed and refused to press plaintiff‘s grievance. Metz held that, in light of the circumstances, the plaintiff could not sit back and claim lack of notice after she knew or should have known that the time to elect arbitration had arrived. In King‘s case the Union never refused to proceed on King‘s behalf and appears to have led her to believe that arbitration continued to be available; otherwise, why would it have prepared for her to sign a letter demanding arbitration, a letter which the Union itself followed up with a letter of its own to the same effect? Despite Judge McLaughlin‘s finding to the contrary, the record before us does not conclusively demonstrate that King failed to exercise reasonable diligence in inquiring about the status of her grievance between February 19, 1982, when she requested the Union to institute grievance proceedings, and June 28, 1983, when she received the letter from Union officials. In fact, King contends that she “made many attempts to inquire into the status of her grievance.” Brief for Appellant at 15. In addition, unlike the union in Metz, which was taking no action whatsoever on behalf of that plaintiff, the Union here was actively pursuing King‘s grievance up to at least October of 1982 and did not entirely cease its efforts on King‘s behalf until some time after the August 1983 meeting. Finally, the Metz court specifically stated that it was not faced with any claim that the union had misled the plaintiff.
In sum, this case simply is inappropriate for summary judgment, because material questions of fact remain unresolved. Heyman, 524 F.2d at 1319-20; FLLI Moretti Cereali S.p.A. v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir.1977). In making the determination whether to grant a motion for summary judgment, the district court “must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judg
III. CONCLUSION
Accordingly, the judgments appealed from are reversed and the matter is remanded for further proceedings consistent with this opinion.
JON O. NEWMAN, Circuit Judge, dissenting:
I respectfully dissent because the undisputed facts establish that Ina King‘s lawsuit against her union and her former employer is barred by the six-month statute of limitation. In returning this case to the District Court for fact-finding, the majority unsettles the law concerning hybrid section 301/fair representation suits and creates an undefined exposure to damage suits that employers are entitled to believe are time-barred. Moreover, the majority does not instruct the District Court what issues are to be tried, now that summary judgment has been disallowed.
King‘s own complaint reveals that the following facts are undisputed: King‘s employer denied her step-four grievance on October 1, 1982, the union had thirty days under the collective bargaining agreement to demand arbitration, the union did not demand arbitration within thirty days, King learned on August 2, 1983, both that her step-four grievance had been denied and that arbitration was then being demanded, and King‘s suit was not filed until February 24, 1984, fifteen months after the union had failed to make a timely demand for arbitration and more than six months after King knew the facts concerning the union‘s conduct.
The majority acknowledges that King‘s cause of action accrued when she “knew or reasonably should have known” that the union had breached its duty of fair representation in the processing of her grievance against her employer. See Santos v. District Council, 619 F.2d 963, 969 (2d Cir.1980). The action of the union, alleged to be in breach of its duty, was its failure to make a timely demand for arbitration of King‘s grievance. Whether that failure was an instance of unfair representation or a legitimate determination that the grievance lacked sufficient merit to warrant arbitration remains to be determined, but the failure, even if actionable, indisputably occurred on November 1, 1982, the end of the thirty-day period for demanding arbitration after the step-four grievance had been denied. King knew of the union‘s failure no later than August 2, 1983, when the union told her it was then requesting arbitration.
The majority allows King‘s time-barred claim to survive the summary judgment motions of the union and the employer because, in its view, “there is no basis upon which to conclude that King knew or had reason to know on August 2, 1983, that her claims against NYTEL and the Union had accrued.” It is hard to see why the undisputed facts fail to furnish such a basis. The only factual issue clearly identified by the majority as one requiring resolution on remand is “whether the Union led King to believe that her grievance would be submitted to arbitration with NYTEL.” But that “issue” is not in dispute at all. All parties agree that the union did lead King to believe that her grievance would be submitted to arbitration with the employer. They all agree that this happened on August 2, 1983. But by then it was already nine months too late to submit the grievance to arbitration. I do not understand why an employer that has bargained for a thirty-day limit on demanding arbitration remains liable to suit when a union does not demand arbitration until nine months after the thirty-day period has expired and the employee does not sue until more than six months after learning of the union‘s delinquency.
The majority identifies two reasons for challenging Judge McLaughlin‘s conclusion that King knew or should have known no later than August 2, 1983, that her cause of action had accrued. First, she may not have known that the collective bargaining agreement allowed only thirty days to demand arbitration. Second, she may have thought that the union had preserved its right to demand arbitration. These possibilities ought not to keep this suit alive. In the first place, King does not even allege, in her complaint or her affidavit opposing summary judgment, that she was unaware of the thirty-day time limit for demanding arbitration. In fact her affidavit suggests the contrary; she states, “The fact that the collective bargaining agreement says the union has thirty (30) days from the denial of the Step 4 grievance to request arbitration, did not make me believe the union was acting in bad faith....” In any event, the law was clear, until today, that an employee is charged with knowledge of those terms of a collective bargaining agreement concerning the processing of grievances. See Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983), cert. denied, 464 U.S. 1070 (1984); Illis v. United Steelworkers, 615 F.Supp. 1081, 1085 n. 3 (D.V.I.1985); Hull v. Local 414, International Brotherhood of Teamsters, 601 F.Supp. 869, 873 (N.D.Ind.1985). Though the employee in Metz had even less justification for delaying suit than did King, the case is indistinguishable in its holding that the employee “knew, or at least should have known, that under the provisions of the contract the time to elect arbitration had arrived....” 715 F.2d at 304 (emphasis added).1 As for the possibility that King may have thought that the union had “preserved” its right to demand arbitration, she makes no claim to this effect.2