Appendix — Chrysler Workers Ass'n v. ChrysLer Corp.

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6 @ I 6 8 z Supreme Court, U.S.

FILED

No.

__ APR 7 1958

IN THE JOSEPH F. SPANIOL, JR.

Supreme Court of the United States

October Term, 1987

CHRYSLER WORKERS ASS®OCIATION, et ai.,

Petitioners,

vs.

CHRYSLER CORPORATION; INTERNATIONAL UNION,

UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA—UAW LOCALS 4371,

#1331, #1435, #2035 and #2147,

Respondents.

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

To THE UNITED STATES CoURT OF APPEALS

FOR THE SIXTH CIRCUIT

GorDON A. SENERIUS, Counsel of Record

DENNIS P. STRONG

THOMAS L. VANWORMER

BAYFORD, SENERIUS, STRONG

& HERSHMAN

3450 West Central, Suite 336

Toledo, Ohio 43606

(419) 537-8631

Attorneys for Petitioners

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

Opinion of the U.S. Court of Appeals for the Sixth

Circuit, No. 86-3361, filed November 25, 1987.... Al

Opinion and Order of the United States District

Court, Northern District of Ohio, Case No. C 84-

Tees Se PE Oh Skea ee cee i eee eee A24

Judgment Entry of the United States District

Court, Northern District of Ohio, Case No. C 84-

Tat Ce HE By WUE oo kc 86d dank ved ees aces A65

Order of the United States District Court, Northern

District of Ohio, Case No. C 84-7273, filed April

25, 1986, amending by interlineation the District

Court’s Opinion and Order filed April 16, 1986... A66

Order of the U.S. Court of Appeals for the Sixth

Circuit, filed January 19, 1988, denying appellant-

petitioners’ petition for rehearing en banc ....... A67

Letter from UAW International Executive Board,

dated December 1, 1983, indicating date of

Se I x Sic ck weenie a neseee seers A68

~s

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APPENDIX

Decision of the United States Court of Appeals

For the Sixth Circuit

(Filed November 25, 1987)

No. 86-3361

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

CHRYSLER WORKERS ASSOCIATION, et ai.,

Plaintiffs-Appellants,

Vv.

CHRYSLER CORPORATION; INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA—UAW LOCALS #371, #1331, #1435,

#2075 & #2147,

Defendants-Appellees.

On Appeal from the United States District Court

for the Northern District of Ohio.

Before: MARTIN, WELLFORD and NELSON, Circuit

Judges.

WELLFORD, Circuit Judge. The individual plaintiffs

are now employees at the General Dynamics Land

Systems, Inc. (GDLS), Lima, Ohio, tank manufacturing

plant. Formerly, they worked for Chrysler Defense, Inc.

(a wholly owned subsidiary of Chrysler formed to

manufacture defense products rather than automobiles).

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This is an appeal from the district court’s order granting

summary judgment to the defendants, Chrysler, the

United Automobile, Aerospace, and _ Agricultural

Implement Workers of America International Union

(UAW), several UAW locals, and GDLS. The suit stems

from the plaintiffs’ attempts to return to their “home”

plants, in which they were employed before transferring

to the Lima, Ohio, tank plant pursuant to a work

opportunity provision in their collective bargaining

agreement (CBA) with Chrysler. The plaintiffs claim that

UAW violated its duty of fairly representing them and

pursuing their grievances. They claim Chrysler breached

the CBA by not transferring them back to their “‘home’’

plants. (Plaintiff Chrysler Workers Association is simply

an organization formed by individual plaintiffs to

advance their interests.)

We consider first whether the district court erred by

holding that the defendants are entitled to summary

judgment because the plaintiffs’ causes of action were

barred by the applicable six month statute of limitations.

During an economic recession Chrysler indefinitely

laid off thousands of workers at Chrysler plants,

including, in 1981 and 1982, these plaintiffs who worked

in Perrysburg, Ohio, Van Wert, Ohio, and New Castle,

Indiana (hereafter referred to as “home” plants).

Chrysler Defense, Inc., on the other hand, was then

expanding, so, under the provisions of a CBA between

Chrysler and the UAW and all its locals, the plaintiffs

took advantage of an opportunity to transfer to the Lima,

Ohio tank manufacturing plant operated by Chrysler

Defense, Inc. This work opportunity provision of the

CBA (#65) afforded the transferring employees an

opportunity to return to their home plants under certain

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conditions.' The plaintiffs could also return to their home

plants in two other ways: (1) under the provisions of the

“Ohio Letter,” a subsequent agreement modifying the

CBA, which provided that plaintiffs could opt to return

if their home plants hired new employees and if the

return did not adversely affect either plant’s operations,

or (2) under the provisions of the so-called ‘‘Sadie

Hawkins Day’’ term, a special provision whereby, once

each year on a_ selected date, work opportunity

employees, such as plaintiffs, who are not indefinitely

laid off from the work opportunity plant, were afforded

an opportunity to sign up to return to their home plant

(but only in a situation where the home plant would have

otherwise hired a new employee, and provided such

transfer would ‘‘not affect adversely the efficiency of the

operations at the plant or plants involved”).

Since none of the plaintiffs were indefinitely laid off

from the GDLS tank plant, their conditional opportunity

to return to their home plants was limited to the Ohio

Letter or the “Sadie Hawkins Day” terms. Plaintiffs

attempted to exercise a transfer option under these two

—s

1. (65) WORK OPPORTUNITY FOR LAID OFF EMPLOYEES

(in pertinent part)

The plant agrees that in employing new people in any

department it will give work opportunity to qualified laid off

employees in the following order:

Employees accepting work under this Subsection (b) shall

have no right to return to former plant< unless and until they

are permanently laid off from the new plant. When so laid off

they shall elect to (i) retain seniority at the new plant and in

such case their seniority at their former plants shall terminate

or (ii) return to their former plant with full accumulated

seniority and in such case their seniority at all other plants

shall terminate. (Emphasis added).

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provisions, but Chrysler did not permit transfer.’ The

plaintiffs want this return for two reasons: to retain their

old Chrysler seniority, and because these plants are

closer to their homes than the Lima tank plant.

In early 1982, Chrysler planned to sell its defense

industry operations. The UAW learned that General

Dynamics Corporation (GD) would buy Chrysler Defense,

Inc., so it began negotiations with GD. The parties

essentially agreed, by March of 1982, that GD would

abide by the 1979 Chrysler-UAW CBA terms until the

existing CBA termination date of September 14, 1982.

Chrysler Defense, Inc., after being sold to GD, was

renamed GDLS. Plaintiffs became employees of GDLS,

not Chrysler, since Chrysler no longer had any

connection with the Lima tank plant. The statute of

limitations dispute revolves about the question whether

and when plaintiffs were notified, or put on notice, that

the sale affected their recall rights to Chrysler.

Apparently, however, both corporate and Union officials

had some question about the plaintiffs’ status at the

time; as a consequence, two “‘letters of understanding”

or “‘letter agreements” were issued.

2. The Ohio letter of understanding pertained to Chrysler

workers laid off at the Perrysburg, Ohio facility. Since plaintiffs were

subject to this supplemental agreement, others, who worked at the

Van Wert, Ohio plant, and the New Castle, Indiana plant are not

seeking transfer back to these plants under the Ohio agreement,

which is described in plaintiffs’ brief at pp. 3-5 as having ‘modified

Article 65 of the 1979 agreement (for those employees transferred to

plants more than 50 miles from their home plant) ... and operated

only with respect to transfers from home plants to other plants

within fifty miles.’’ Van Wert employees attempted to return to their

home plants under the Sadie Hawkins Day agreement. It is uncertain

on what basis New Castle employees sought transfer. Plaintiffs in

their brief assert at pages 5 and 24 that New Castle employees did

not transfer to the Lima tank plant under the work opportunity

provision, §65 of the 1979 CBA; rather, they “hired in off the street

as new employees.”

Vrms We

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The first letter agreement from GD to the UAW was

dated May 18, 1982. Marc Stepp, Vice President of the

UAW, “accepted” this letter.’ The second letter to the

UAW, dated June 7, 1982, was from Chrysler

Corporation, and the same UAW official ‘‘accepted”’ this

letter. The latter states Chrysler's understanding of the

plaintiffs’ rights to return to their home Chrysler plants,

and the UAW'’s agreement thereto:

1. An employee of CDI (now GDLS) who would

otherwise qualify for the right to return to a

Chrysler Corporation plant based on Section 54(c) or

Section 65(b) of the applicable Chrysler-UAW

agreements, may exercise the opportunity to return

to his former plant if indefinitely laid off by GDLS

according to the provisions of said agreements, on or

before September 14, 1982. Unless indefinitely laid

off by that date, any such employee shall lose any

right to return to Chrysler. (Emphasis added).

Twice in July of 1982 the UAW held a meeting to

explain to Union members the effect of the Chrysler sale

to GD. The plaintiffs allege that ‘“‘no mention was made

of"’ the May and June 1982 letters of understanding and

that ‘‘no one informed the Plaintiffs that their seniority

rights at their home plants or their ability to return to

their home plants had been in any way altered as a result

of the sale.’* Local Union president, Darrell Cole,

3. This letter dealt with former GDLS employees returning to

the Lima plant and is not at issue.

4. In their reply brief at p. 2, it is set out that “‘[t}he Plaintiffs

do not dispute that the letter agreements, secretly entered into by

UAW, Chrysler and General Dynamics, appear to extinguish the

Plaintiffs’ seniority rights on September 14, 1982." These letter

agreements specifically refer to extinguishment of transfer privileges

to home plants by September 14, 1982.

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testified that he did not recall telling the Union members

about the letter agreements or that their recall! rights

would terminate on September 14, 1982, nor did he recall

any other Union representative explaining this to the

Union workers. Stepp testified that he “doubted very

much” that the June 7, 1982, letter agreement ‘‘was

reproduced and sent to the members”, and that, as far as

he knew, the letter agreements were never furnished to

the plaintiffs. Homer Jolly, a UAW Chrysler

Department official, testified that he did not know if the

letter agreements were ever given to the plaintiffs or

posted for them to see. Jolly did testify that he

discussed their recall rights with the plaintiffs, but this,

again, is a source of controversy.

In September of 1982, the UAW again held a

meeting, this time to inform the membership of the

terms and conditions of a proposed new CBA between

the UAW and GDLS. The plaintiffs assert that they

were not then told about the effect on their opportunity

to return to their Chrysler home plants. Jolly stated that

no Chrysler worker ever asked about returning or was

told that he could return to his home plant. Plaintiffs’

affidavits do not dispute this testimony. They simply

assert that plaintiffs did not know that Chrysler and the

Union considered their opportunity to return to “home”

plants then to be at an end.

5. Stepp also testified about two undated letters drafted at his

direction, one to Chrysler workers contemplating a return to the Lima

GDLS plant and one to GDLS workers contemplating a return to

Chrysler plants. While the letters, drafted after the May and June

1982, letter agreements, did not mention the letter agreements or the

terms thereof, they purported to explain the benefits and/or

drawbacks of transferring back to the former plants. There is also a

dispute about whether plaintiffs saw, or received, these undated

letters.

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The UAW and GDLS bargained for a new CBA after

September 14, 1982, and within two weeks UAW and

GDLS agreed to a new CBA, to expire September 14,

1985. The new CBA had no provisions relating to

Chrysler or former Chrysler employees, and the

membership, including the plaintiffs, ratified the new

CBA.

Whether the 1979 CBA expired on September 14,

1982. is contested. The termination provision, section

(119), states that the 1979 CBA remains in effect until

September 14, 1982, but may renew from year to vear

thereafter unless either party gives notice to “modify,

amend or terminate’ the agreement sixty days before

the termination date. There is no evidence that either

party gave the notice. The parties agreed to ‘‘change’

section (119) of the 1979 CBA on September 5, 1983 (one

year later). Some witnesses “assumed” termination or

amendment of the 1979 CBA had occurred. The question

of the September 14, 1982, termination is involved in the

statute of limitations issue.

On the other hand, that the 1979 CBA terms expired

on September 14, 1982, as between the UAW and GDLS,

cannot seriously be questioned. On March 11, 1982,

GDLS agreed to follow the terms of the 1979 CBA

between Chrysler and the UAW only until September 14,

1982. Clearly, after September 14, 1982, GDLS was not

bound by the 1979 CBA. After a short strike and

subsequent negotiations, a UAW-GDLS CBA effective

September 27, 1982, was executed.

There is no dispute but that Chrysler and the UAW

twice amended the 1979 CBA, once on December 10,

1982, and again on September 5, 1983. By September 14,

1982, none of the plaintiffs had been indefinitely laid off

by GDLS. The district court determined that:

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Sometime subsequent to the aforesaid sale of

Chrysler Defense, Inc. to General Dynamics,

Chrysler, due to improved economic factors, began

to expand its work force at certain of its plants,

after which time plaintiffs’ sought to return from

GDLS’s Lima tank plant to their “home” Chrysler

plants. Such attempts of plaintiffs were

unsuccessful. In 1983 and 1984, several GDLS

employees filed or sought to file grievances with

respect to a _ perceived refusal to allow said

employees to return to their “home” Chrysler

plants. The Union did not process those grievances

that were actually filed, nor would it file any

grievance with respect to the ‘“home’”’ plant transfer

issue. No GDLS employee at the Lima tank plant

was indefinitely laid off between March, 1982 and

September 14, 1982. As of March 23, 1984, the date

this lawsuit was commenced, plaintiffs had not been

separated from GDLS; rather, they continue to be

employed by GDLS at the Lima, Ohio tank plant.

On November 11, 1983, the UAW sent letters to the

plaintiffs unequivocally denying their grievances about

not permitting home plant transfers. The plaintiffs,

unable to get the UAW to process their grievances about

their right to return to their home plants, formed the

Chrysler Workers Association and filed suit on March

23, 1984. On April 27, 1986, after discovery and

numerous motions, the district court granted summary

judgment to all defendants on the basis of the statute of

limitations:

Applying the standards for accrual to the

undisputed facts of this case establishes that

plaintiffs [sic] hybrid §301/fair representation claim

accrued no later than December 10, 1982, the date of

AY

the 1982 national and local agreement between the

Union and Chrysler. Said 1982 agreement did not

renew the May 18, 1982 and June 7, 1982 letters of

understanding, nor did it apply to plaintiffs UAW

Local Union 2075, nor did it provide for either inter-

corporation or cross-national bargaining unit work

opportunity transfers. By July, 1982 plaintiffs knew

or reasonably should have know [sic] that their

subject Chrysler “home plant recall/seniority

rights["’] would terminate September 14, 1982. By

September 14, 1982, plaintiffs knew or reasonably

should have known that the October 25, 1979

agreement between Chrysler and the UAW expired

by its express terms. Further, by September 14,

1982, plaintiffs knew or reasonably should have

known that the express prerequisite for returning to

their “home” Chrysler plants with seniority had not

occurred, to wit, being indefinitely laid off by GDLS

before September 14, 1982. By September 27, 1982,

plaintiffs knew or reasonably should have known

that the 1982 collective bargaining agreement

between the UAW and GDLS covered plaintiffs’

UAW Local Union 2075, said 1982 agreement did

not renew or extend the May 18, 1982 or the June 7,

1982 letters of understanding, and that said 1982

agreement did not provide for inter-corporation or

cross-national bargaining unit work opportunity

transfers.

By December, 1982 subsequent to ratification of

the December 10, 1982 agreement between the

UAW and Chrysler, plaintiffs knew or reasonably

should have known that the Lima, Ohio tank plant

UAW Local Union 2075 was not covered by said

agreement, that the aforesaid letters of

understanding were not renewed by said 1982

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agreement, and that said 1982 agreement did not

provide for inter-corporation or cross-national

bargaining unit work opportunity transfer. In sum,

the Court finds that plaintiffs’ hybrid $301 fair

representation claim accrued no later than December

10, 1982 by which time plaintiffs discovered or in

the exercise of reasonable diligence should have

discovered the acts constituting either the alleged

violation of the abrogation of their Chrysler “‘home’’

plant recall/seniority rights or the fact of

defendants’ agreement that plaintiffs’ said ‘“*home”’

plant recall/seniority rights would terminate on

September 14, 1982, Plaintiffs discovered or in the

exercise of reasonable diligence should have

discovered that their Chrysler “home” plant

recall/seniority rights were impaired or, as alleged,

abrogated by the actions of defendants (the

gravamen of their complaint), as early as July, 1982,

and-no later than the dates of ultimate ratification

of the respective 1982 agreements between the

UAW and GDLS and between the UAW and

Chrysler. Finally, plaintiffs [sic] cause of action for

the Union's violation of §101 of the LMDRA. 29

U.S.C. $411, for failure to permit plaintiffs to ratify

both the aforesaid letters of understanding and the

March 16, 1982 agreement between GDLS and the

UAW accrued no later than July, 1982.

The court also found that the statute of limitations had

not been tolled-

The district court dismissed GDLS,* granted

summary judgment on the statute of limitations defense

to both Chrysler and the UAW, and struck plaintiffs’

jury demand. In a previous order, dated September 25,

6. No objection was made as to dismissing GDLS. GD has also

been dismissed as a party defendant.

All

1985, the district court denied plaintiffs’ request for

leave to file another amended complaint and refused to

compel further discovery. (Plaintiffs sought three

interrogatory answers from Chrysler and a more

complete answer to another of its interrogatories.)

The plaintiffs’ claims’ arise essentially under $301 of

the Labor Management Relations Act (LMRA) of 1947,

29 U.S.C. §185,® and from §9(a) of the National Labor

Relations Act (NLRA), 29 -U.S.C. §159(a).° There is a

7. The plaintiffs’ amended complaint alleges breach of the CBA

by the employer, breach of the union’s duty of fair representation,

violation of the union’s constitution and bylaws, and

misrepresentation. They seek monetary damages, a declaration of

their rights, injunctive relief, and punitive damages.

8. (a) Suits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between any

such labor organizations, may be brought in any district court

of the United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to the

citizenship of the parties.

LMRA §301, 29 U.S.C.A. §185(a)(1978).

9. (a) Representatives designated or selected for the purpose of

collective bargaining by the majority of the employees in a unit

appropriate for such purposes, shall be the exclusive

representatives of all the employees in such unit for the

purposes of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of

employment: Provided, That any individual employee or a group

of employees shall have the right at any time to present

grievances to their employer and to have such grievances

adjusted, without the intervention of the bargaining

representative, as long as the adjustment is not inconsistent

with the terms of a collective-bargaining contract or agreement

then in effect: Provided further, That the bargaining

representative has been given opportunity to be present at such

adjustment.

NLRA §%a), 29 U.S.C.A. §159(a)(1973).

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judicially implied duty of fair representation under these

statutes. See, e.g., International Brotherhood of Elec.

Workers v. Foust, 442 U.S. 42, 46 n.8 (1979).

This type of suit against an employer and union is

known as a hybrid §301/unfair representation action.

E.g., DelCostello v. International Brotherhood of

Teamsters, 462 U.S. 151, 165 (1983); Vaca v. Sipes, 386

U.S. 171 (1967). A six month limitations period, as

established in §10(b) of the NLRA, applies to suits of

this type. DelCostello, 462 U.S. at 172. Since this action

was pending when DelCostello was decided on June 8,

1983, the six month statute governs these claims. Smith

v. General Motors Corp., 747 F.2d 372, 375 (6th Cir.

1984) (en banc); McCreedy v. Local Union #971, 809 F.2d

1232, 1236 (6th Cir. 1987). The plaintiffs’ causes of action

are accordingly time barred if they accrued prior to

September 23, 1983. Hybrid §301/fair representation

claims accrue when employees discover, or should have

discovered with the exercise of reasonable diligence, the

acts constituting the alleged violations. See Shapiro v.

Cook United, Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per

curiam) (stating the ‘“‘cause of action accrue[d] by

operation of the collective bargaining agreement’’) and

Former Frigidaire Employees Association v.

International Union of Elec., Radio & Machine Workers,

Local 801, 573 F. Supp. 59, 61-62 (S.D. Ohio 1983), aff'd

sub nom., Adkins v. International Union of Elec., Radio

& Machine Workers, 769 F.2d 330 (6th Cir. 1985). The

question in this case involves an application of this rule

to the facts of this dispute and whether the district court

could have decided that the plaintiffs knew or should

have known of the facts giving rise to their claims before

September 23, 1983. DelCostello, 462 U.S. at 171-72.

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Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a

judge, .... The evidence of the non-movant is to be

believed, and all justifiable inferences are to be

drawn in his favor. Adickes [v. S. H. Kress & Co.],

398 U.S. [144], at 158-59 [1970] ....

Anderson v. Liberty Lobby, Inc., USS. , 106

S. Ct. 2505, 2513 (1986). At the same time, only disputes

over material facts that might affect the outcome of the

suit under the governing law will preclude the entry of

summary judgment. ‘“‘Summary judgment will not lie if

the dispute about a material fact is ‘genuine,’ that is, if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Jd. at 2510.

The plaintiffs argue that their recall rights did not

expire upon the September 14, 1982, purported

termination of the 1979 CBA. Since they claim that the

1979 CBA remained in effect, they assert also that they

remained laid-off employees of Chrysler, temporarily

working for another company, and that their recall rights

did not terminate. Plaintiffs further argue that the

district court ignored their affidavits stating that they

did not know their recall rights were extinguished until

the union refused to process their grievances beginning

in late 1983.

The date of accrual or implied knowledge of plaintiffs

is a material issue. In determining whether there is a

genuine dispute of fact precluding proper entry of

summary judgment for defendants, we look at facts that

point to six possible times at which the plaintiffs knew

or should have known of the accrual of their claims: (1) in

May and June of 1982 when their bargaining

representative, the UAW, received the GDLS and

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Chrysler letter agreements; (2) in July and September of

1982 during the course of three local UAW membership

meetings; (3) on September 14, 1982, when the UAW-

Chrysler 1979 CBA purportedly terminated: (4) on

September 27, 1982, when the UAW-GDLS CBA became

effective; (5) on December 10, 1982, or September 5,

1983, when the UAW-Chrysler 1979 CBA was amended;

or (6) on November 11, 1983, when the plaintiffs received

the UAW’s letters telling them about the letter

agreements and refusing to process their grievances.

Only if there is a sufficient and a reasonable basis to

support a jury verdict that the last of these dates is the

accrual date, should we set aside the judgment of the

district court, because the asserted actual knowledge of

plaintiffs is not determinative if they did not act as

reasonable persons and, in effect, closed their eyes to

evident and objective facts concerning accrual of their

right to sue.

The district court mentioned that ~the plaintiffs’

causes of action may have accrued when the May and

June 1982 letter agreements were written and delivered

to the Union. There is no firm undisputed evidence that

these plaintiffs, who are now suing the UAW for the

UAW’'s alleged unfair representation of them, were ever

specifically told by the UAW about these letters until

November of 1983, when the UAW refused to process

grievances on the issue. The plaintiffs have sworn that

they did not actually know about the letter agreements.

Union witnesses do not specifically contradict this, but

Chrysler had every reason to believe its position was

made known, and that, in the absence of a prompt

complaint or grievance, its position was unchallenged by

Union officials or by Union members. Chrysler had, in

short, a firm agreement terminating transfer privileges

by September 14, 1982.

Ald

The court also found it undisputed that: ‘In July of

1982, the Union had two meetings ... at which, inter

alia, the May 18, 1982 and June 7, 1982 letters of

understanding were read to said membership.” The court

also indicated that plaintiffs were told of the termination

of their recall rights at the Sept-mber, 1982, ratification

meeting. Neither conclusion is undisputed on this record.

It is questioned by plaintiffs that the May and June

1982 letters were ever discussed with the plaintiffs

during the 1982 meetings. It is disputed whether

plaintiffs actually knew at the July or September 1982

UAW meetings that their recall rights were affected by

the sale of the Lima plant to GD, and that their Union

had agreed that the opportunity to transfer back to a

home plant terminated September 14, 1982.

The district court also concluded that “bly

September 14, 1982, plaintiffs knew or reasonably should

have known that the October 25, 1979 agreement

between Chrysler and the UAW expired by its express

terms” and that their recall rights had ceased. Whether

the 1979 CBA expired on September 14, 1982, is

questioned by plaintiffs. The termination clause in the

CBA provides for renewal of the CBA from year to year

unless a specific termination procedure is utilized. It is

not clear whether this procedure was followed.

The district court indicated that the plaintiffs’ cause

of action accrued by September 27, 1982, the date of the

new UAW-GDLS CBA. Since the GDLS’s local UAW

membership ratified the UAW-GDLS CBA, and

plaintiffs were a part of this process, it seems fair to

conclude that the plaintiffs, by exercising reasonable

diligence, might well have known that their recall rights

back to Chrysler plants were in doubt, especially since

the UAW-GDLS CBA contained no provision related to

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recall to a Chrysler plant and there was no inclusion of

the plaintiffs’ former locals (at Chrysler plants) on the

list of parties bound by this CBA with GDLS. Further,

by then plaintiffs were on notice that the Chrysler

Defense plant sale to GD would, or at least might, have

affected their recall rights. They knew that they were no

longer considered Chrysler employees at least under the

new GDLS agreement. The new CBA between GDLS

and UAW contained no provisions similar to the ‘“‘Ohio

letter’”’ agreement or the “Sadie Hawkins Day’”’

agreement.

As Chrysler points out, moreover, there is indication

that at least some of the plaintiffs, on roughly March 8,

1983, questioned their ability to return to their home

plants, as some of them asked the UAW and GDLS

about being recalled to Chrysler. GDLS gave them no

assurance but told them to contact the local UAW; the

local UAW allegedly refused to respond to plaintiffs’

inquiries. A reasonable conclusion might be drawn that

the plaintiffs failed to exercise due diligence in not

finding out what their rights were either before or

shortly after the new September 27, 1982, UAW-GDLS

CBA, especially if the plaintiffs knew by early 1983 that

the Union would not respond to their requests

concerning the opportunity to transfer back to Chrysler

which was no longer their employer. Whether this is a

sufficient basis for awarding defendants summary

judgment on accrual of a cause of action, however, may

be questionable.

The UAW and Chrysler renegotiated a national CBA

on December 10, 1982, as amended September 5, 1983.

There is no doubt but that on December 10, 1982, and

September 5, 1983, the plaintiffs were employed by

GDLS, not Chrysler, and they worked at the GDLS

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plant. Even if defendants had any continuing duty to

plaintiffs (as alleged Chrysler employees in a lay-off

status), plaintiffs must be deemed to have notice of these

agreements and their implementation.

Plaintiffs argue that the 1982 letter agreements were

not intended to alter the 1979 CBA. They did, however,

clearly terminate any transfer right from the Lima

GDLS plant to a Chrysler home plant by September 14,

1982. The latter agreements were signed by responsible

officials of Chrysler, GD, and the UAW and referred

specifically to the changed circumstance of the sale of

Chrysler Defense, Inc., later known as GDLS, to GD and

establishment of ‘‘separate bargaining units and labor

agreements.” Plaintiffs were aware no later than

September of 1982 that they were employees ‘* GDLS

and that there was a separate UAW-GDLS labor

agreement covering their employment and that there

were separate bargaining units governing Chrysler plants

and the GDLS plant. They also knew that there was no

reference in their separate GDLS CBA to a Chrysler

local union or any transfer right back to Chrysler home

plants.

Plaintiffs also knew that they had not, prior to

September 14, 1982, been indefinitely laid off by GDLS.

Under terms of the Chrysler CBA, then, and the terms of

the supplemental letter agreements, there was no basis

in law for a transfer back to Chrysler home plants. New

Castle plaintiffs assert (at page 24 of their brief) that

“they were not required to wait until the New Castle

Chrysler facility recalled all its laid-off workers and

began hiring off the street,’’ citing the decision of the

Public Review Board which finally rejected the Gaw

grievance on August 30, 1985. New Castle plaintiffs

asserted that their rights of transfer accrued when ‘‘they

Al8

were passed over for recall at their home plants.”

(Plaintiffs’ brief at 24). Their brief, moreover, asserts

that “Joe Gaw [a New Castle plaintiff} and the New

Castle, Indiana Chrysler workers had been passed over

for recall prior to July, 1982."" Jd. at 24. New Castle

plaintiffs further assert that they “immediately filed

grievances,” which were rejected, id. at 24, and thus they

claim Chrysler then violated the CBA by July of 1982 as

to New Castle plaintiffs. This contention has no merit

insofar as Chrysler is concerned.

The district court, citing Vallone v. Teamsters, Local

705, 755 F.2d 520 (7th Cir. 1984), held that the filing of

the grievance by Gaw did not toll the statute of

limitations. Neither Chrysler nor the UAW recognized

the New Castle plaintiffs’ grievance, and it was clear

after September 14, 1982, that neither party defendant,

claimed by plaintiffs to be responsible to them,

recognized a recall right to the New Castle, Indiana

Chrysler plant at any time less than six months before

this suit was filed. As stated by the district court:

A hybrid §301/fair representation claim accrues

and the applicable statute of limitations begins to

run when the claimant knows or reasonably should

have known of the union's alleged breach of its duty

of fair representation. Dowty v. Pioneer Rural

Electric Cooperation, Inc., 770 F.2d 52, 56 (6th Cir.

1985), cert. denied, 106 S. Ct. 572 (1985).

Al9

“A claim accrues under section 10(b) lof the

NLRA, 29 U.S.C. §160(b)] when the claimant

discovers, or in the exercise of reasonable diligence

should have discovered, the acts constituting the

alleged violation.” Adkins, 769 F.2d at 335, citing,

Shapiro v. Cook United, 762 F.2d 49, 51 (6th Cir.

1985) (per curiam); Howard v. Lockheed-Georgia Co.,

742 F.2d 612, 614 (11th Cir. 1984) (per curiam); Metz

v. Tootsie Roll Industries, 715 F.2d 299, 304 (7th

Cir. 1983), cert. denied, 464 U.S. 1070 (1984).

The district court was not in error, then, in

concluding that the New Castle plaintiffs are barred by

the statute of limitations in their claim against Chrysler.

Plaintiffs concede that if the court holds the 1979

agreement home plant transfer privileges were

terminated on September 14, 1982, “then the Plaintiffs’

causes of action cannot be based on a breach of a

collective bargaining agreement.” (Plaintiffs’ brief at 32.)

Insofar as any plaintiff claims damages against

Chrysler under the “Sadie Hawkins Day’ agreement, it

should be noted that this agreement (relied on by Van

Wert plaintiffs), expressly provides that “the corporation

shall not incur any liability for claimed violations or

errors in the administration of this [Sadie Hawkins]

Memorandum of Understanding.”” Whether or not the

statute of limitations constitutes a bar to a claim under

this agreement, the above language eliminating liability

against Chrysler would preclude a claim thereunder:

moreover, the language further specifies that the Sadie

Hawkins understanding ‘‘shall not take precedence over

the terms and provisions of other understandings and

agreements.”

A20

As to defendant Chrysler, we are not prepared to

affirm the district court’s conclusion that the six months

statute of limitation barred plaintiffs’ claims in all

respects. We find another basis, however, for affirming

the judgment for defendant Chrysler—the plaintiffs’

concession that there is no cause of action:

The Plaintiffs would only reiterate that if in fact

this Court finds that the Plaintiffs’ recall/seniority

rights were eliminated in 1982 either because of the

secret May and June, 1982 letter agreements or as a

matter of law because of the alleged expiration of

the 1979 Agreement, the Plaintiffs have no cause of

action whatsoever against Chrysler Corporation for

breach of contract.

Plaintiffs’ Reply Brief at 11.

We conclude, under all the circumstances, that the

district court reached a correct result in rendering a

judgment for Chrysler. We base this conclusion upon the

terms of the 1979 CBA and the letter agreement of June

7, 1982, and the undisputed fact that none of the

plaintiffs had been laid off by GDLS on or before

September 14, 1982.'° Whether or not plaintiffs knew by

September 14, 1982, of the terms of the preceding June

letter agreement, it was a valid, reasonable and binding

agreement entered into by Chrysler and the plaintiffs’

collective bargaining representative limiting ‘“‘interplant

transfers” and precluding “‘inter-company transfers.’’ In

the context of the economic conditions then faced by

Chrysler and the sale of its defense unit to a new and

unrelated employer in early 1982, we find the

arrangement worked out by UAW with Chrysler and

10. The June 7, 1982 ietter agreement sets out specifically that

“unless indefinitely laid off by that date, any such employee shall lose

any right to return to Chrysler.”

A21

with GD, the purchaser of the Lima plant, as a matter of

law to constitute neither a conspiracy nor a fraud

operating against the interests of former Chrysler

employees. Shortly after the letter agreement the Union

put plaintiffs and other ‘‘work opportunity employees’

who had transferred to the Lima plant on notice of a

meeting to be attended by _ international Union

representatives in July of 1982 to “explain. the

agreement and to answer questions.’ Plaintiffs

undeniably had the opportunity to ask the Union about

their status as GDLS employees. There was no

‘affirmative’ act of concealment.

The Union, which is the collective bargaining

representative of plaintiffs, is not required as a matter of

law to submit the type of letter agreement here involved

to the membership for ratification. Cleveland Orchestra

Committee v. Cleveland Federation of Musicians, Local

#4, 303 F.2d 229 (6th Cir. 1962). See Oddie v. Ross Gear

& Tool Co., 305 F.2d 143, 149 (6th Cir.), cert. denied, 371

U.S. 941 (1962); Ford Motor Co. v. Huffman, 345 U.S.

330 (1953). Unions under the NLRA have broad

authority to engage in binding collective bargaining with

respect to “‘pay, ... hours of employment, or other

conditions of employment.” 29 U.S.C. §§157, 159.

Whether the Union constitution or by-laws may require

this submission of an agreement to its members for

approval is another matter. In any event, we find that

Chrysler had a right to rely upon its agreement with the

Union absent clear notice that the Union was acting in

bad faith against the interests of its members. There is

no such indication here.

Our decision to affirm judgment for Chrysler is not

based upon the district court’s statute of limitations

determination. We believe there could be a factual

A22 .

question as to when the plaintiffs were on notice of

accrual of their rights to bring an action both for failure

to represent and with respect to Chrysler's alleged

violation. We have simply determined that the record

established that Chrysler did not violate its contractual

responsibilities with respect to plaintiffs’ claimed

transfer rights, and that neither Chrysler nor the UAW

have fraudulently concealed from plaintiffs their asserted

causes of action.

We have considered each of the dates when the

district court found that plaintiffs’ right to sue accrued

or may have accrued. Giving plaintiffs’ averments and

contentions every fair and reasonable construction, we

cannot say that there may not have been a genuine

dispute concerning material facts as it relates to the

accrual date. That plaintiffs did not act as diligently or

expeditiously as they might to protect their claimed

transfer rights or interests does not warrant a summary

judgment for defendants on the basis of the applicable

six months statute of limitations. For the reasons stated

by the district court, however, we believe it was correct

in any event in denying plaintiffs’ claim of punitive

damages against the defendant unions.

Since the plaintiffs have not prevailed against

defendant Chrysler for the reasons heretofore set out,

they must be deemed to have failed in this claim for

damages against the union. Although we do not find that

such a decision is mandated as a matter of law under the

statute of limitations defense asserted by defendant

unions, we affirm the judgment in their favor because of

the peculiar nature of the §301 claim. Such a claim

against the unions is “inextricably interdependent’’ upon

plaintiffs’ claim against defendant Chrysler. DelCostello

v. Teamsters Union, 462 U.S. 151, 164, 165 (1983).

A23

‘To prevail against either the company or the Union,

_.. [employee-plaintiffs] must not only show that

their discharge was contrary to the contract but

must also carry the burden of demonstrating breach

of duty by the Union.’"’ Mitchell, supra, at 66-67

(Stewart, J., concurring in judgment), quoting

Hines, supra, at 570-71. The employee may, if he

chooses, sue one defendant and not the other; but

the case he must prove is the same whether he sues

one, the other, or both. The suit is thus not a

straight forward breach-of-contract suit under $301,

as was Hoosier, but a _ hybrid §301/fair

representation claim, amounting to ‘‘a_ direct

challenge to ‘the private settlement of disputes

under [the collective-bargaining agreement].’ ”’

Mitchell, supra, at 66 (Stewart, J., concurring in

judgment), quoting Hoosier, 383 U.S., at 702.

DelCostello at 165."' See also Vaca v. Sipes, 386 U.S. 171

(1967); Smith v. Kerrville Bus Co., 748 F.2d 1049, 1053

(5th Cir. 1984); Findley v. Jones Motor Freight, 639 F.2d

953, 957, 958 (3rd Cir. 1981).

Accordingly, we AFFIRM the judgment for all

defendants.

11. See also the cases cited in DelCostello: United Parcel Service,

Inc. v. Mitchell, 451 U.S. 56 (1981); Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554 (1976); Auto Workers v. Hoosier Cardinal Corp.,

383 U.S. 696 (1966).

A24

Opinion and Order of the District Court

(Filed April 16, 1986)

Case No. C 84-7273

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN District or On10

WESTERN Division

CHRYSLER WORKERS ASSOCIATION, et al.

Plaintiffs,

vs.

CHRYSLER CORPORATION, et al.

Défendants.

OPINION AND ORDER

Porrer, J.:

This matter is before the Court on Chrysler

Corporation's (hereafter Chrysler) motion for summary

judgment, plaintiffs’ opposition thereto, Chrysler's reply,

plaintiffs’ surrebuttal, Chrysler's motion for leave to

respond instanter thereto, the joint motion for summary

judgment of defendants International Union, United

Automobile, Aerospace and Agricultural Implement

Workers of America (UAW) and UAW Local Nos. 371,

1331, 1435, 2075 and 2147 (collectively hereafter Union

or UAW), plaintiffs’ opposition thereto, the Union's

reply, plaintiffs’ several surrebuttals, the Union's

response thereto, the motion for summary judgment of

defendant General Dynamics Land Systems, Inc.

(hereafter GDLS) the Union and plaintiffs’ respective

A25

responses thereto, the Union's motion to strike plaintiffs’

jury demand, plaintiffs’ opposition thereto, plaintiffs’

motion for reconsideration of the Court’s January 25,

1985 order, and plaintiffs’ motion both for

reconsideration of the Court’s September 25, 1985 order

and for leave to file a reply memorandum.

Plaintiff Chrysler Workers Association purportedly

‘s a voluntary association organized for the asserted

purpose of advocating certain rights of its members. The

individual plaintiffs are former employees both of

Chrysler Corporation and of Chrysler Defense, Inc., and

they are members of defendant UAW Local Union No.

2075. In addition, plaintiffs presently are employees of

GDLS at its Lima, Ohio tank plant. Defendant Chrysler

Corporation is an employer in an industry affecting

interstate commerce. Chrysler, inter alia, manufactures

automobiles at its various production and assembly plant

facilities including those located at Perrysburg, Ohio,

Van Wert. Ohio, and New Castle, Indiana. Defendant

International Union and defendant local unions are labor

organizations in an _ industry affecting interstate

commerce. The UAW is the exclusive collective

bargaining representative for plaintiffs. Defendant

General Dynamics Land Systems, Inc. is an employer in

an industry affecting interstate commerce. In addition,

GDLS, formerly known as Chrysler Defense, Inc., owns

and operates the subject Lima, Ohio tank plant.

On October 25, 1979, Chrysler and the UAW entered

into a production and maintenance collective bargaining

agreement (hereafter 1979 agreement) which contained,

inter alia, certain provisions relating to transfer

opportunities under certain circumstances for laid-off

employees. At the time the 1979 agreement became

effective, plaintiffs were employees of Chrysler. During

A26

1981 and 1982, the individual plaintiffs were indefinitely

laid off at various Chrysler plants due to economic

factors. Notwithstanding, Chrysler Defense, Inc.’s Lima,

Ohio tank plant was maintaining or expanding its

production level. Chrysler and Chrysler Defense, Inc.

employees had rights under the collective bargaining

agreement to transfer under specified conditions between

plants of the national Chrysler-UAW bargaining unit.

Pursuant to a work opportunity provision of the 1979

agreement ($65) which provided that workers who were

indefinitely laid off from a Chrysler plant could transfer

to another Chrysler plant, plaintiffs all transferred from

other Chrysler plants to the Chrysler Lima, Ohio tank

plant. With respect to an employee's ‘‘home plant,’’ an

employee who transferred, pursuant to the work

opportunity provision, to another plant within the

bargaining unit, retained contractual seniority rights and

under certain specified conditions could return to his

‘‘home”’ Chrysler plant.

In early 1982, Chrysler spun off all of its military

product operations as a separate subsidiary known as

Chrysler Defense, Inc. Also, in early 1982, the UAW

became aware that Chrysler was negotiating with

General Dynamics Corporation for the sale of Chrysler

Defense, Inc. During March of 1982, the UAW and

General Dynamics reached an agreement embodied in

writing which, in essence, provided that General

Dynamics both would recognize the UAW as the

bargaining agent for employees at plants formerly

operated by Chrysler Defense, Inc. and would abide by

the express provisions of the 1979 agreement as to

former CDI employees until its expiration on September

14, 1982.

A27

On or about March 16, 1982, Chrysler sold its total

ownership stock shares of Chrysler Defense, Inc. which

operated Chrysler’s defense plants including the Lima,

Ohio tank plant, to General Dynamics Corporation.

General Dynamics both renamed Chrysler Defense, Inc.

and incorporated its new business as General Dynamics

Land Systems, Inc. (GDLS). Subsequently, GDLS

agreed to honor both the principal and applicable terms

of the 1979 agreement between Chrysler and the UAW

until its expiration.

On September 14, 1982, the collective bargaining

agreements both between the- UAW and Chrysler and

between the UAW and GDLS expired. The UAW and

GDLS negotiated a new production and maintenance

collective bargaining agreement which became effective

September 27, 1982 and which expired September 14,

1985 (hereafter 1982 agreement), the terms and conditions

of which governed each plaintiff's employment with

GDLS. National negotiations between Chrysler and the

UAW culminated in collective bargaining agreements of

December 10, 1982 and September 5, 1983. The 1982

agreement between the UAW and GDLS did not contain

any transfer provision either continuing the provisions of

the 1979 agreement regarding return to ‘‘home’”’ plants

or regarding transfer of a GDLS employee to another

company.

Sometime subsequent to the aforesaid sale of

Chrysler Defense, Inc. to General Dynamics, Chrysler,

due to improved economic factors, began to expand its

work force at certain of its plants, after which time

plaintiffs sought to return from GDLS’s Lima tank plant

to their “home” Chrysler plants. Such attempts of plain-

tiffs were unsuccessful. In 1983 and 1984, several GDLS

employees filed or sought to file grievances with respect

A28

to a perceived refusal to allow said employees to return

to their ‘“‘home’’ Chrysler plants. The Union did not

process those grievances that were actually filed, nor

would it file any grievance with respect to the ‘‘thome”’

plant transfer issue. No GDLS employee at the Lima

tank plant was indefinitely laid off between March, 1982

and September 14, 1982. As of March 23, 1984, the date

this lawsuit was commenced, plaintiffs had not been

separated from GDLS; rather, they continue to be

employed by GDLS at the Lima, Ohio tank plant.

On March 23, 1984, plaintiffs commenced this labor

action by filing their complaint with this Court.

Fed.R.Civ.P. 3. Plaintiffs’ complaint, as amended, alleges

breach of the applicable collective bargaining

agreements, breach of the Union’s duty of fair

representation, violation of the Union’s constitution and

bylaws and misrepresentation. Specifically, by their first

cause of action plaintiffs allege, albeit implicitly, that

Chrysler and the Union, in violation of the existing

collective bargaining agreements, entered into

surreptitious agreements which extinguished plaintiffs’

rights to return to their “home’’ Chrysler plants.

Plaintiffs claim that by unilaterally abrogating plaintiffs’

‘‘home”’ plant transfer rights, Chrysler breached the 1979

collective bargaining agreement and the Union breached

its duty to the individually named plaintiffs to fairly

represent them. By their second cause of action,

plaintiffs allege that the Union further breached its duty

of fair representation by its arbitrary, capricious and

discriminatory handling of certain grievances which

plaintiffs’ either filed or attempted to file. Plaintiffs

claim that the manner in which the Union handled

plaintiffs’ grievances alleged Chrysler ‘‘to breach the

collective bargaining agreement with immunity.’ By

their third cause of action, plaintiffs allege that while

A29

simultaneously entering into an agreement in violation

of the Union’s constitutionand bylaws with Chrysler and

GDLS to the contrary, the Union “intentionally and/or

negligently misrepresented to the Plaintiffs . .. that the

sale of Chrysler Defense, Inc. to General Dynamics Corp.

_ would have no adverse effect on their existing right

to return to their ‘home plants.” Plaintiffs seek

declaratory and injunctive relief, damages for lost wages,

lost benefits, and lost seniority rights, punitive damages,

and the costs of this action including reasonable

attorney's fees.

Plaintiffs’ lawsuit is what has come to be referred to

as a hybrid §301/fair representation action, see, e.g.,

DelCostello v. International Brotherhood of Teamsters,

462 U.S. 151, 165 (1983), which action is brought

simultaneously against both plaintiffs’ employer and

their Union. Plaintiffs’ suit against Chrysler rests on

§301 of the Labor Management Relations Act of 1947

(LMRA), 29 U.S.C. §185, for breach of the applicable

collective bargaining agreement by an employer.

DelCostello, 462 U.S. at 164. Plaintiffs’ action against

the Union is one both for breach of the Union’s duty of

fair representation and for the Union's violation of the

constitution and bylaws. The duty of a union to fairly

represent the members of a particular bargaining unit,

which members it represents collectively, is judicially

implied under Section 9a) of the National Labor

Relations Act (NLRA), 29 U.S.C. §159(a). See Storey v.

Local 327, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers, 759 F.2d 517,

518-19 (6th Cir. 1985). Cf. DelCostello, 462 U.S. at 164;

International Brotherhood of Electrical Workers v. Foust,

442 U.S. 42, 46 n.8 (1979); Vaca v. Sipes, 386 U.S. 171,

177 (1967); Steele v. Louisville & Nashville Railroad Co.,

323 U.S. 192, 202-04 (1944).

A30

Duty of fair representation claims include, inter alia,

allegations of unfair, dishonest, perfunctory, arbitrary, or

discriminatory treatment of workers by unions and

allegations of discrimination based on membership status

or dissident views. DelCostello, 462 U.S. at 164, 170.

Plaintiffs claim that the Union violated provisions of its

bylaws and constitution is brought under $101 of the

Labor-Management Reporting and Disclosure Act of

1959 (LMRDA), 29 U.S.C. §411. Because plaintiffs’

claims of breach of the collective bargaining agreement

and of breach of the duty of fair representation “‘are

inextricably interdependent, ‘[tlo prevail against either

the company or the Union, . . . [employee-plaintiffs] must

not only show that their [loss of right to return with

seniority to their ‘‘home’’ Chrysler plants] was contrary

to the contract but must also carry the burden of

demonstrating breach of duty by the Union.” United

Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 (1981)

(Stewart, J., concurring in judgment), quoting, Hines v.

Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976).

In such situations, an employee may, if he chooses, sue

one defendant (the employer/company or the exclusive

bargaining agent/union) and not the other; but, the case

an employee-plaintiff must prove is the same whether he

sues one, the other, or both. DelCostello, 462 U.S. at 51.

The Court’s initial inquiry must be whether

plaintiffs’ misrepresentation claim is preempted by

federal law. Whether a particular state cause of action or

regulation may coexist with the comprehensive scheme

of federal labor law depends on whether the conduct

which a state seeks to regulate or to make the basis of

liability is actually or arguably protected, prohibited, or

regulated by federal labor law. See Local 926,

International Union of Operating Engineers, AFL-CIO v.

Jones, 460 U.S. 669, 675-76 (1983). If the conduct at

A31

issue is arguably so prohibited, protected, or regulated,

otherwise applicable state law and procedures are

ordinarily preempted. Jd. at 676, citing, San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 245

(1959); Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180,

187-90 (1978), and Farmer v. Carpenters, 430 U.S. 290,

296 (1977).

It is clear from the face of plaintiffs’ second amended

complaint that plaintiffs’ hybrid §301/fair representation

claim (first, second, and third causes of action) and

plaintiffs’ state law misrepresentation claim (third cause

of action) both arise from and are based on the same set

of facts. Clearly, plaintiffs’ federal and state claims are

intertwined. Moreover, the same alleged conduct of

defendants is the basis of plaintiffs’ causes of action:

their claim that Chrysler breached the collective

bargaining agreement, their claim that the Union

breached its duty of fair representation and violated the

Union constitution and bylaws, and their state law

misrepresentation claim. The court finds that plaintiffs’

third cause of action, to the extent that it purports to

assert a state law claim for misrepresentation, is

preempted by the pervasive scheme of federal labor law.

Local 926, International Union of Operating Engineers,

AFL-CIO, 460 U.S. at 676. The doctrine of federal

preemption accordingly dictates that this case be decided

exclusively by the applicable federal labor law. See, e.g.,

Davis Co. v. United Furniture Workers, 674 F.2d 557

(6th Cir. 1982), cert. denied, 459 U.S. 968 (1982)

(Tennessee libel law preempted by federal labor iaw);

Fristoe v. Reynolds Metal Co., 615 F.2d 1209 (9th Cir.

1980); Williams v. Pacific Maritime Ass’n, 421 F.2d 1287

(9th Cir. 1970); Avco Corp. v. Aero Lodge No. 735 IAM,

376 F.2d 337 (6th Cir. 1967), aff'd, 390 U.S. 557, reh’g

denied, 391 U.S. 929 (1968).

A32

Plaintiffs move the Court for reconsideration of ‘‘its

decision of January 25, 1985 denying Plaintiffs’ Motion

to Compel answers to interrogatories.’ Upon review of

the record in this case, the Court finds that it issued no

order on January 25, 1985. The court assumes that

plaintiffs seek reconsideration of the Court's September

25, 1985 memorandum and order denying the August 27,

1985 motion of plaintiffs to compel, as having been filed

untimely. The subject interrogatories were both served

on Chrysler on May 19, 1985 and filed with the Court on

May 24, 1985. Upon consideration and for the same

reasons stated by the Court in its September 25, 1985

memorandum and order, the Court finds plaintiffs’

motion for reconsideration to be not well taken.

Accordingly, the Court will deny said motion.

Plaintiffs move both for reconsideration of the

Court's September 25, 1985 memorandum and order

denying plaintiffs’ motion for leave to file a third

amended complaint, and for leave to file a supplemental

memorandum in support of the aforesaid motion for

leave to file a third amended complaint. In_ its

memorandum and order of September 25, 1985, the

Court fully addressed the issues raised by plaintiffs’

instant motion. Plaintiffs correctly observe that at the

time the Court issued the aforesaid memorandum and

order, trial of this case was scheduled for October 1,

1985. However, at a pretrial conference held September

30, 1985, the Court set this cause for trial on April 22,

1986 with a backup trial date of July 15, 1986. By its

pretrial order of October 3, 1985, the Court ordered that

both discovery and motion practice remain closed. This

case is presently the number one case for trial

commencing April 22, 1986. Upon consideration and for

the same reasons stated at length by the Court in its

September 25, 1985 memorandum and order, the Court

A33

finds plaintiffs’ motion and their arguments advanced in

support thereof to be not well taken. Accordingly, the

Court will deny said motion.

Defendant Union moves this Court to strike

plaintiffs’ jury demand on the grounds that plaintiffs, in

essence, have no statutory right, either express or

implied, to a jury trial in this hybrid $301/fair

representation action and that plaintiffs have no right

under the Seventh Amendment to the United States

Constitution to a jury trial. Referencing the three-prong

inquiry enunciated in Ross v. Bernhard, 397 U.S. 531

(1970), defendant Union asserts that plaintiffs’ hybrid

§301/fair representation action is not in the nature of a

suit at common law and, therefore, no premerger of law

and equity custom of entitlement to a jury trial exists

and that the remedies sought by plaintiffs are, in fact,

equitable in nature. The Union argues that both because

a ciose relationship exists between fair representation

and unfair labor practice actions and because Congress

did not authorize jury trials for unfair labor practice

actions, “had Congress considered the issue, it would not

have authorized jury trials for breach of the duty of fair

representation actions.” The Union further argues that

its duty of fair representation is rooted in well

established equity principles related to fiduciary

responsibility. The Union asserts, albeit implicitly, that

plaintiffs’ claim for punitive damages is frivolous and,

therefore, should be given no weight by the Court in its

determination of the right to jury trial issue. The Union

maintains that, in any event, punitive damages may not

be assessed in fair representation actions. Finally, the

Union asserts that the current rule of the Sixth Circuit

is that a jury trial is unavailable for claims under 29

U.S.C. §411.

A34

Plaintiffs complaint contained a timely jury demand.

Plaintiffs assert that they expressly claim damages for

lost wages, lost benefits, lost seniority rights and for

severe mental and emotional distress, and that they seek

declaratory and injunctive relief. Plaintiffs contend that

under the three-prong test of Ross v. Bernhard, supra,

plaintiffs are entitled to a jury trial in accordance with

the Seventh Amendment's guarantee. Plaintiffs argue

that since the nature of the remedy sought is of primary

importance with respect to the right to jury trial issue, a

jury trial is appropriate in an action under $301 of the

LMRA, 29 U.S.C. §185, when a legal rermedy such as

compensatory damages for severe mental and emotional

distress and punitive damages is requested. Plaintiffs

further argue that a right to a jury trial exists for a

claim for damages under §101 of the LMRDA, 29 U.S.C.

$411 whether or not equitable relief also is requested.

Plaintiffs assert that punitive damages are recoverable

for a claim brought under 29 U.S.C. §411 where a plaintiff

has demonstrated that a union has acted with malicious

intent. Plaintiffs contend that since a $301 cause of

action “is merely a breach of contract claim’ and since

breach of the duty of fair representation has been

characterized as a common law tort, both of which

causes of action were recognized at cemmon law, the

Seventh Amendment preserves the right of jury trial as

to the issues raised by said causes of action. Plaintiffs

argue that the legal issues presented by their action are

not incidental to the equitable issues so raised. Finally,

plaintiffs assert that the issues raised by their $301

claim are well within the practical abilities of jurors.

Plaintiffs acknowledge that their instant claim

against Chrysler is for breach of the subject collective

bargaining agreement and that their claim against the

Union is for breach of the Union's duty of fair

ASS

representation. Plaintiffs have also alleged that the

Union violated $101 of the LMRDA, 29 U.S.C. §411 by

failing ‘‘to inform Plaintitfs or to allow ... Plaintiffs the

opportunity to ratify the abrogation of their recall

rights."’ (p. 2, plaintiffs’ memorandum contra Union's

motion to. strike jury demand). Notwithstanding,

plaintiffs state that they ‘‘have now learned that there

has been no agreement abrogating their ‘recall rights.’ "’

(p. 2, plaintiffs’ memorandum contra Union's motion to

strike jury demand).

As the Court stated supra, plaintiffs’ action is a

hybrid §301/fair representation claim brought under $301

of the LMRA, 29 U.S.C. $185. DelCostello, 402 U.S. at

164-65. The right to bring an unfair representation action

against a union is one which is judicially implied from

the NLRA, 29 U.S.C. §159(a), DelCostello, 462 U.S. at

164, and Congress has not specified what remedies are

available in such suits. Jnternational Brotherhood of

Electrical Workers v. Foust, 442 U.S. 42, 47 (1979). As a

result, a judicially created and implemented remedial

scheme has developed for this judicially implied cause of

action. /d., at 47, 47 n.9.

Punitive damages are generally not recoverable in an

action brought under §301 of the Labor Management

Relations Act, 29 U.S.C. §185, for breach of a collective

bargaining agreement by an employee. See Murphy v.

International Union of Operating Engineers, Local 18,

774 F.2d 114, 134 (6th Cir. 1985), citing, Farmer v. ARA

Services, Inc., 660 F.2d 1096, 1106-07 (6th Cir. 1981);

Hechenberger v. Western Electric Co., Inc., 570 F. Supp.

820, 822 (E.D. Mo. 1983), aff'd, 742 F.2d 453 (8th Cir.

1984), cert. denied, 105 S. Ct. 1182 (1985), and citing,

Tippett v. Liggett & Meyers Tobacco Co., 316 F. Supp.

292, 298 (M.D.N.c. 1970). See also Canton Printing

A36

Pressman and Assistants Union No. 241 v. Canton

Repository, 577 F. Supp. 455, 459 (N.D. Ohio 1983); Dian

v. United Steelworkers of America, 486 F. Supp. 700, 706

(E.D. Pa. 1980), citing, Local 127, United Shoe Workers

of America, AFL-CIO v. Brooks Shoe Manufacturing Co.,

298 F.2d 277 (3d Cir. 1962) (en banc) (per curiam). To the

extent that such damages are recoverable, an award for

same must be based on conduct which is more than

merely intentional. Conduct which justifies an award for

punitive damages must be ‘outrageous. or

extraordinary.’’ Butler v. Local Union 823, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, 514 F.2d 442, 454 (8th Cir.

1975), cert. denied, 423 U.S. 924 (1975). The Court finds

that plaintiffs’ allegation of ‘intentional conduct’’ with

respect to Chrysler, does not, in the opinion of this

Court, suffice to support a demand for punitive damages.

The fundamental purpose of unfair representation

suits is simply to compensate an employee for injuries

caused by violation of his rights. International

Brotherhood of Electrical Workers v. Foust, 442 U.S. at

48. Because general labor policy disfavors punishment,

and the adverse consequences of punitive damages

awards could be substantial, punitive damages are not

recoverable against a union for breach of its duty of fair

representation. Jd., at 52. See also Vaca v. Sipes, 386

U.S. 171, 195 (1967); Farmer v. ARA Services, Inc., 660

F.2d 1096, 1106 (6th Cir. 1981); Rogers v. Fedco Freight

Lines, 564 F. Supp. 1169, 1174 (S.D. Ohio 1983);

Williams v. E. I. duPont de Nemours Company, 581 F.

Supp. 791, 793 (M.D. Tenn. 1983).

The Seventh Amendment to the United States

Constitution, in pertinent part, provides that ‘‘[iJn suits

at common law, ... the right of trial by jury shall be

A37

preserved. ...'° The Seventh Amendment thus preserves

the right which existed under the English common law

when the Amendment was adopted. National Labor

Relations Board v. Jones & Laughlin Steel Corp., 301

U.S. 1, 48 (1937); Baltimore & Carolina Line, Inc. v.

Redman, 295 U.S. 654, 657 (1935). The Amendment has

no application to cases where the recovery of money

damages is merely an incident to equitable relief.

National Labor Relations Board, 301 U.S. at 48.

The scope of the Seventh Amendment guaranty

encompasses suits in which legal rights are to be

determined, as contrasted with those in which equitable

rights and remedies alone are determined. Cox v. C. H.

Masland & Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1980),

citing, Ross v. Bernhard, 396 U.S. 531 (1970). A key

distinction between law and equity has historically been

that the former deals with money damages and the latter

concerns injunctive relief. However, this distinction has

been blurred by court decisions indicating that not all

money damages claims will be deemed ‘‘legal.”

Hildebrand v. Board of Trustees of Michigan State

University, 607 F.2d 705, 708 (6th Cir. 1979) (citations

omitted).

In Ross, the Supreme Court established three criteria

for deciding when a right to a jury trial exists:

|F]irst, the pre-merger custom with reference to such

questions; second, the remedy sought; and third, the

practical abilities and limitations of juries.

Ross v. Bernhard, 396 U.S. at 538 n.10.

The Sixth Circuit has decided that the primary focus

to be made when determining whether a jury trial right

exists is the nature of the relief sought. Hildebrand, 607

F.2d at 708. Under the law of this circuit, the remedy of

A38

lost wages (back pay) constitutes equitable relief. See,

e.g., Id.; Moore v. Sun Oil Co. of Pennsylvania, 636 F.2d

154, 156 (6th Cir. 1980); Harris v. Richards

Manufacturing Co., 675 F.2d 811, 815 n.2 (6th Cir. 1982).

If the remedy sought is an injunction, lost wages, lost

benefits, or reinstatement, that is, equitable relief, no

right to a jury trial attaches. Hildebrand, 607 F.2d at

708. But, in the ordinary case, if the relief sought

includes actual or compensatory damages and/or punitive

damages, then a right does exist to trial by jury. Jd.

The Court is of the opinion that plaintiff has no

statutory right to a jury trial. Neither the express

language nor the congressional intent of §301 of the

Labor Management Relations Act, 29 U.S.C. §185, and of

the National Labor Relations Act, 29 U.S.C. $151 et segq.,

support a claim of right to trial by jury. Cf. National

Labor Relations Board v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937). Nor are plaintiffs, under the

prevailing law of this circuit, entitled to a jury trial with

respect to their claim under §101 of the LMRDA, 29

U.S.C. §411. McGraw v. United Association of

Journeymen and Apprentices of the Plumbing and Pipe

Fitting Industry of the United States and Canada, 341

-F .2d-705, 709 (6th Cir. 1965). This Court is cognizant of

the fact that the McGraw decision has been questioned

by several other circuits, see, e.g., Quinn v. DiGiulian,

739 F.2d 637, 645 (D.C. Cir. 1984); Feltington v. Moving

Picture Machine Operators Union Local 306 of I.A.T.S.E.,

605 F.2d 1251, 1257-58 (2d Cir. 1979), cert. denied, 446

U.S. 943 (1980), and that the issue of its continued

vitality or viability has, on occasion, been raised by the

Sixth Circuit. See Hildebrand, 607 F.2d at 708 n.4;

Shimman v. Frank, 625 F.2d 80, 101 (6th Cir. 1980).

Notwithstanding, McGraw remains the rule of the Sixth

A39 -

Circuit and, thus, is dispositive of the right to jury trial

issue with respect to plaintiffs’ claim under 29 U.S.C.

$411.

Plaintiffs seek lost wages, lost benefits, lost seniority

rights declaratory and injunctive relief, damages for

severe mental and emotional distress, punitive damages,

and “such other and further relief as this Court may

deem just and equitable.”

The Court finds that the essence of plaintiffs claim,

fairly stated, is a request for remedial relief in the form

of the right to return with full seniority to plaintiffs’

“home” Chrysler plants. The Court has found that

plaintiffs are not entitled to a jury trial as to their 29

U.S.C. §411 claim. Nor may punitive damages be

recovered by plaintiffs under their hybrid $301/fair

representation claim. Moreover, the Court finds that

plaintiffs’ claim for money damages clearly is merely an

incident to the equitable remedial relief plaintiffs seek.

National Labor Relations Board, 301 U.S. at 48;

McGraw, 341 F.2d at 709.

Plaintiffs’ action is not a suit at common law, nor is

it in the nature of such a suit. Indeed, plaintiffs’ hybrid

§30l/fair representation action is one which was

unknown to the common law. It is, most accurately, in

the nature of a statutory proceeding. Applying the Ross

criteria, the Court finds that plaintiffs’ action and the

relief therein sought are equitable in nature. Further, the

Court finds plaintiffs’ argument that their prayer for

“such other and further relief as this Court may deem

just and equitable” constitutes a prayer for a remedy at

law in the form of damages entitling plaintiffs to a jury

trial, to be without merit. See, e.g., Harris v. Richards

Manufacturing Co., 675 F.2d 811, 815 (6th Cir. 1982).

Accordingly, the Court will grant defendant Union's

motion to strike plaintiffs’ jury demand.

A40

By its motion for summary judgment, defendant

GDLS moves this Court to dismiss GDLS on the ground

that plaintiffs fail to state a claim against GDLS upon

which relief can be granted for breach of a collective

bargaining agreement because GDLS had no contractual

or other legal authority to prohibit its Lima, Ohio tank

plant employees from transferring to Chrysler

Corporation facilities and, alternatively, on the ground

that even if plaintiffs could have stated a valid cause of

action against GDLS for breach of a_ collective

bargaining agreement, such cause of action is time-

barred by the applicable six month statute of limitations.

In their response to defendant GDLS’s motion for

summary judgment, plaintiffs opine that GDLS cannot

prevail on its statute of limitations defense.

Notwithstanding, plaintiffs state ‘‘[djespite extensive

discovery Plaintiffs had [sic] been unable to uncover any

facts which would support a claim against ... [GDLS

‘mjoreover, Plaintiffs were more than willing to dismiss

... [GDLS] over a year ago.” (Plaintiffs’ response to

defendant GDLS’ motion for summary judgment).

Accordingly, the Court elects to treat GDLS’ motion sub

judice as a motion to dismiss, pursuant to Fed.R.Civ.P.

12(b)(6), for failure to state a claim upon relief can be

granted.

Defendant Union opposes dismissal of GDLS from

this action on the ground that in the event ‘“‘the Court

deems it appropriate to revise both the Chrysler and

General Dynamics labor agreements, it would be

improper to leave the UAW and Chrysler with a group of

workers [plaintiffs herein] whose pension and SUB

benefits have been adversely affected [without] ... the

necessary trust fund adjustments between General

Dynamics and Chrysler’ which adjustments this Court

A4l

could mandate if GDLS remained a party to this

litigation. The Court is unaware of any _ pending

crossclaim in this action by the UAW against GDLS.

The Court finds the UAW’s argument to be unpersuasive

and, therefore, will grant the motion of GDLS to dismiss.

Defendant Chrysler and the Union defendants move

for summary judgment on the ground that there is no

issue as any fact which is material to the issues sub

judice and that they are entitled to judgment as a matter

of law.

Chrysler asserts that at all times pertinent to this

lawsuit, defendant UAW was the exclusive collective

bargaining agent for Chrysler's employees including

plaintiffs, with which agent and _ not _ individual

employees, Chrysler was legally required to negotiate

those matters which are the subject of this lawsuit.

Chrysler further asserts that it lawfully did so negotiate

such matters with the UAW. Chrysler maintains that it

has fully complied with all of its agreements with the

Union which are the subject of this litigation. Chrysler

further maintains that since the Union has _ not

unlawfully breached its statutory duty of fair

representation as_ plaintiffs’ exclusive collective

bargaining agent, plaintiffs cannot maintain this action

against either the Union or Chrysler. Chrysler contends

that, in any event, plaintiffs’ instant hybrid $301/fair

representation action is barred by the applicable six

month statute of limitations.

Plaintiffs submit that the various agreements,

contracts, and letters and memoranda of understanding

at issue in this lawsuit are themselves contradictory.

Plaintiffs assert that they have not been separated (laid

off) from GDLS’ Lima, Ohio tank plant and, therefore,

§49 (loss of seniority) 1ather than §65 (work opportunity

A42

for laid off employees) is the provision of the 1979

agreement which is determinative of plaintiffs’ seniority

rights with Chrysler. Plaintiffs claim that due to the sale

of Chrysler Defense Inc. to General Dynamics, $65 of the

1979 agreement is not applicable to them as they are no

longer employees of other plants of Chrysler. Plaintiffs

contend that after September 14, 1982, the 1979

agreement was not applicable to the Lima, Ohio tank

plant. Plaintiffs assert that the 1979 agreement has not

expired, only that it has been amended, and that none of

the circumstances delineated in $49 of the 1979

agreement triggering loss of seniority, have, in fact,

occurred. Plaintiffs contend that, accordingly, unless -

their seniority rights have been either negotiated away

or abrogated by consent of the parties, such rights

remain in effect. Plaintiffs maintain that their

recall/seniority rights as to their Chrysler “home” plants,

were not the subject of negotiations between the parties,

nor have plaintiffs consented to the abrogation of such

rights. Plaintiffs contend that their seniority/recall rights

to ‘“‘home”’ Chrysler plants have not been bargained away

and, therefore, such rights exist irrespective of which

collective bargaining agreement applies to plaintiffs.

Plaintiffs argue that absent explicit contractual

language extinguishing their seniority/recall rights,

Chrysler's failure to recall plaintiffs under either §65 or

$61 of the 1979 agreement, constitutes a breach of the

applicable collective bargaining agreement. Plaintiffs

claim that Chrysler breached the 1979 agreement either

by passing over plaintiffs for recall or by hiring new

employees ‘‘off the street.”

Plaintiffs deny that they were informed prior to

November 11, 1983 that the Union's position was that

plaintiffs’ recall/seniority rights with Chrysler had been

A43

eliminated. Plaintiffs contend that they were not

informed during the ratification meeting of the

September 27, 1982 agreement of the loss of their

seniority/recall rights. Plaintiffs claim that it was not

until November 11, 1983 that they first learned that the

UAW and Chrysler had entered into an agreement

terminating plaintiffs’ recall and_ seniority rights.

Plaintiffs argue their cause of action against Chrysler did

not accrue until the loss of their seniority rights was

announced or until they knew or reasonably should have

known that they had been passed over for recall.

Plaintiffs argue that whenever their cause of action

-accrued, the running of the statute of limitations with

respect thereto was tolled because of Chrysler and the

Union’s concerted activity to deliberately conceal that

Chrysler intended to breach the 1979 collective

bargaining agreement by not recalling plaintiffs, that

Chrysler actually passed over plaintiffs for recall, and

the existence of the March 16, 1982 agreement between

the UAW and GDLS. Plaintiffs argue that the applicable

statute of limitations was tolled by the Union's

fraudulent misrepresentation and concealment as to the

loss of their seniority rights. Plaintiffs argue that since no

proof exists as to when their cause o1 action accrued, the

applicable statute of limitations may not be employed to

bar assertion of their cause of action.

In its motion for summary judgment, defendant

Union asserts that with respect to plaintiffs’ Chrysler

‘“‘home”’ plant recall/seniority rights, three agreements

are relevant: the May 18, 1982 and June 7, 1982 letters

of understanding and the September 27, 1982 collective

bargaining agreement between the UAW and GDLS. The

Union contends that during July, 1982 the aforesaid

letters of understanding were explained to the affected

union membership at the GDLS Lima tank plant and

A44

that the September, 1982 collective bargaining

agreement between the UAW and GDLS was submitted

for ratification and simultaneously explained to all local

union memberships, including the Lima tank plant local,

covered by said agreement. The Union insists that the

1982 agreement between GDLS and the UAW does not

contain language similar to either §65 of the 1979

agreement between Chrysler and the UAW or the

aforesaid letters and memoranda of understanding, nor

does it contain any other provision allowing either former

CDI employees or GDLS employees return/seniority

rights to ‘home’ Chrysler plants. The Union

acknowledges that it refused to file or further process

grievances filed by several of the plaintiffs regarding a

perceived refusal to allow them to return or be recalled to

their ‘“‘home”’ Chrysler plants, based on its determination

that said grievances were meritless.

The Union claims that it is entitled to summary

judgment as to plaintiffs’ breach of duty of fair

representation claim either because the Union's

actions with respect both to the aforesaid relevant

agreements and to plaintiffs’ grievances were not

arbitrary, discriminatory or in bad faith or because

neither Chrysler nor GDLS breached its respective

collective bargaining agreement with the UAW. The

Union contends it is entitled to summary judgment as to

plaintiffs’ 29 U.S.C. §411 claim because plaintiffs have

failed to state a claim under $101 of the LMDRA for

which relief can be granted against the Union. The Union

maintains that it is further entitled to summary

judgment because plaintiffs have failed to exhaust

available internal union remedies prior to commencing

this action.

A45 7

Defendant Union contends that, in any event, all of

plaintiffs’ claims are time-barred by the applicable six

month statute of limitations. The Union maintains, in

essence, that all of the aforesaid agreements relevant to

plaintiffs’ Chrysler ‘‘home”’ plant return/seniority rights

both were consummated and became effective prior to

six months preceding the date on which plaintiffs

commenced this action, and, similarly, that said

agreements were explained to the membership of

plaintiffs’ UAW local union earlier than six -months

preceding the date plaintiffs commenced this action. The

Union further maintains that additionally, the 1979

agreement between Chrysler and the UAW expired

earlier than six months preceding the commencement

date of this lawsuit. Defendant Union argues that,

therefore, plaintiffs discovered or through reasonable

diligence should have discovered the existence of the

three agreements which plaintiffs claim abrogated their

“home” plant return/seniority rights and knew or

reasonably should have known the content of said

agreements with respect to the loss of their Chrysler

“home” plant return/seniority rights earlier than six

months preceding the date on _ which plaintiffs

commenced this action. The Union further argues that,

accordingly, plaintiffs’ cause of action accrued, if at all,

more than six months before plaintiffs filed this lawsuit.

The Union contends that plaintiffs’ instant action having

been commenced more than six months after the accrual

of their causes of action, are barred by the applicable

statute of limitations.

Plaintiffs begin their opposition to defendant Union's

motion for summary judgment by insisting that the

Union has failed to set forth the facts material to the

issues sub judice in a light most favorable to plaintiffs.

Plaintiffs claim that the 1979 agreement, as the same

A46

affected plaintiffs’ Chrysler ‘‘home’”’ plant recall/seniority

rights, did not expire, rather, that it was only amended.

Plaintiffs declare their primary argument is that the

1979 agreement, never having been altered, is in full

force and effect. Plaintiffs argue that their Chrysler

“home” plant recall/seniority rights have not been

extinguished because of the unequivocal language of the

1979 agreement and because said rights lie with their

‘thome” Chrysler plants which were still covered by the

1979 agreement as amended.

Plaintiffs advance that seniority is a creature of

collective bargaining agreements and does not exist .

apart from them. Plaintiffs argue that in order to modify

or extinguish seniority rights thus created, specific

unequivocal language must be employed in such an

agreement to effectuate modification or termination

thereof. Although plaintiffs acknowledge that the 1982

agreement contains no language either providing for

inter-corporation transfer of GDLS employees to

Chrysler or allowing GDLS employees who were former

Chrysler workers that through work opportunity became

CDI employees at the Lima tank plant, to return with

seniority to their ‘home’’ Chrysler plants, plaintiffs

contend that none of the agreements purportedly

extinguishing plaintiffs recall/seniority rights contains

specific unequivocal language to that effect. Plaintiffs

maintain that they never received copies of the May 18,

1982 and June 7, 1982 letters of understanding. They

further maintain that notwithstanding the July, 1982

meeting with Homer Jolly, it was not until November 11,

1983 that they became aware of either the aforesaid

letters of understanding or the March 16, 1982

agreement between the UAW and GDLS or of the fact

that their recall rights were effectively terminated as of

September 14, 1982. Plaintiffs further maintain that

Ad

neither the Union nor Chrysler informed plaintiffs at

either the July, 1982 meeting relative to the letters of

understanding or the September 27, 1982 ratification

meeting that their recall/seniority rights terminated as of

September 14, 1982. Plaintiffs claim that they were not

told at the UAW Local No. 2075 September 27, 1982

ratification meeting that they could not return with

seniority to their former Chrysler ‘“‘home”’ plants.

Plaintiffs contend that the Union breached its duty

of fair representation to plaintiffs by clearly acting

beyond a wide range of reasonableness with respect to

their Chrysler ‘‘home’’ plant recall/seniority rights.

Plaintiffs argue that the Union breached its duty to

fairly represert plaintiffs both by entering into

agreements abrogating their recall/seniority rights and

by misleading plaintiffs in furtherance of GDLS and

Chrysler's interests in keeping their respective work

forces in tact. Plaintiffs further argue that Chrysler

either breached the 1979 collective bargaining agreement

or, in the alternative, anticipatorily breached said

agreement. Plaintiffs claim the Union breached its duty

of fair representation when it failed to inform Local 2075

members of the UAW/Chrysler joint position that

plaintiffs’ recall/seniority rights expired as of September

14, 1982. Plaintiffs maintain that the Union’s conduct

with respect to the handling of plaintiffs’ grievances has

been perfunctory, arbitrary and in bad faith.

Plaintiffs assert that in the event the Court holds

that the May 18, 1982 and June 7, 1982 agreements

terminated the 1979 agreement as to plaintiffs, the UAW

and its locals violated $101 of the LMRDA by depriving

plaintiffs of their right to ratify collective bargaining

agreements. Plaintiffs argue that their cause of action

under $101 of the LMDRA accrued when they knew or

A48

should have known of the existence of said agreements.

However, plaintiffs declare their new position is that

such actions by the UAW although unlawful are not now

actionable because neither the May 18, 1982 and June 7,

1982 letters of understanding nor the March 16, 1982

agreement between the UAW and GDLS altered or

extinguished any of plaintiffs’ rights.

Plaintiffs insist that their causes of action against

Chrysler and the UAW did not accrue until they knew or

reasonably should have known that Chrysler breached

the 1979 agreement by failing to recall plaintiffs. They

further insist that Chrysler’s intent not to recall them.

was not communicated to plaintiffs until November 11,

1983. Plaintiffs argue that since the collective bargaining

agreement applicable to them remained unchanged as to

recall/seniority rights, their causes of action can only

accrue upon breach of the existing collective bargaining

agreement. Acknowledging that their causes of action

are subject to a six-month statute of limitations period,

plaintiffs argue that it was not until November 11, 1983

that they learned of the May 18, 1982 and June 7, 1982

letters of understanding, of the March 16, 1982

UAW/GDLS agreement, and of Chrysler’s intent not to

recall plaintiffs with seniority to their ‘“home’”’ plants.

Plaintiffs argue that defendants have not

affirmatively demonstrated that plaintiffs knew or

should have known of the unilateral termination of their

recall/seniority rights as a result of the 1982 collective

bargaining agreement between the UAW and GDLS.

Plaintiffs conclude that their causes of action against

Chrysler and the UAW accrued November 11, 1983 at

the earliest, and that their instant action, having been

commenced March 23, 1984, is timely. Notwithstanding,

in their September 24, 1985 supplemental memorandum

A49

plaintiffs argue that because of the Public Review

Board's decision as to Joe Gaw’s appeal, plaintiffs’ cause

of action accrued only as of August 30, 1985. Plaintiffs

assert- that, in any event, the fraudulent concealment of

material facts by both Chrysler and the UAW tolled the

running of the applicable statute of limitations period.

Plaintiffs contend that the UAW concealed the letters of

understanding, and the March 16, 1982 UAW/GDLS

agreement until November 11, 1983, and that both the

UAW and Chrysler actively concealed the fact that

Chrysler intended not to recall plaintiffs with seniority to

their respective ‘‘home’ plants. Finally, plaintiffs

maintain that they either have exhausted or should be

excused from exhausting all internal Union remedies.

Plaintiffs contend that neither Chrysler nor the

Union is entitled to summary judgment. Further, they

assert that a considerable dispute exists with respect to

the Union’s ‘‘involvement both prior to and after the sale

of CDI to General Dynamics,” the intent of the

respective parties both as to what the collective

bargaining agreements were to cover and as to the

respective expiration dates of each, whether or not the

Union or Chrysler informed plaintiffs that their Chrysler

‘“‘thome”’ plant recall/seniority rights expired September

14, 1982, whether plaintiffs’ grievances are meritorious,

which collective bargaining provision is applicable, when

plaintiffs’ causes of action accrued, and whether Chrysler

or the Union fraudulently concealed material facts from

plaintiffs.

Plaintiffs maintain that summary disposition of this

case is inappropriate. Plaintiffs advance that the essence

of their complaint against Chrysler and the Union is that

under the unequivocal language of the applicable

collective bargaining agreement, their recall/seniority

A50

rights were never extinguished and they continue to

exist, that Chrysler failed to honor said rights when it

did not recall plaintiffs to their ‘‘home™’ plants, and that

the Union failed to enforce said recall/seniority rights

already enjoyed by plaintiffs, in breach of its duty of fair

representation.

Defendants have moved, pursuant to Fed.R.Civ.P.

56(b), for summary judgment. Fed.R.Civ.P. 56(c), in

pertinent part, provides that ‘[t]he judgment sought

shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits ... show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of

law.”’ Fed.R.Civ.P. 56(e), in pertinent part, provides that

‘Iwlhen a motion for summary judgment is made and

supported ..., an adverse party may not rest upon the

mere allegations or denials of his pleading, but his

response, by affidavits or .. . otherwise . . ., must set forth

specific facts showing that there is a genuine issue for

trial. If he does not so respond, summary judgment, if

appropriate, shall be entered against him.”

Summary judgment is appropriate and may be

granted only where there is no genuine issue with respect

to the material facts of the case. Mozert v. Hawkins

County Public Schools, 765 F.2d 75, 78 (6th Cir. 1985),

citing, County of Oakland v. City of Berkley, 742 F.2d

289, 297 (6th Cir. 1984); In re Atlas Concrete Pipe, Inc.,

668 F.2d 905, 908 (6th Cir. 1985). A court may not

properly resolve disputed questions of fact in a summary

judgment decision, and if a disputed question of material

fact exists, the court should deny the motion for

summary judgment and proceed to trial. See Jn re Atlas

Concrete Pipe, Inc., 668 F.2d at 908. Indeed, the very

A5l

purpose of a motion for summary judgment is to

eliminate a trial where it would be unnecessary and

merely result in delay and expense. Bouldis v. U.S.

Suzuki Motor Corp., 711 F.2d 1319, 1324 (6th Cir. 1983).

Although summary judgment is a useful and often

efficient device for deciding appropriate cases,,it must be

employed only with extreme caution for it operates to

deny a litigant his day in court. Smith v. Hudson, 600

F.2d 60, 63 (6th Cir. 1979), cert. dismissed, 444 U.S. 986

(1979). If the record evidence plainly reveals that no

dispute as to any material fact exists, the case should be

decided as a matter of law rather than be submitted to a

jury. Bouldis, 711 F.2d at 1324, citing, Davis-Watkins

Co. v. Service Merchandise, 686 F.2d 1190, 1197 (6th Cir.

1982), cert. denied sub nom. Service Merchandise Co. v.

Amana Refrigeration, Inc., 466 U.S. 931 (1984). See also

Smith v. Hudson, 600 F.2d at 64-65.

The United-States Court of Appeals for the Sixth

Circuit has interpreted Fed.R.Civ.P. 56(c) to require that

‘the District court ... review the entire record before

deciding whether to render a decision on the merits.”

Smith v. Hudson, 600 F.2d at 64. Moreover, a party is

never required to respond to a motion for summary

judgment in order to prevail thereon since the burden of

establishing the nonexistence of genuinely disputed

material fact always rests with the movant. Smith uv.

Hudson, supra, citing Adickes v. Kress & Co., 398 U.S.

144, 160 (1970) (other citations omitted).

In ruling on a motion for summary judgment, the

Court’s function is to determine with respect to any fact

which is material to the issues sub judice, if any genuine

issue exists, not resolve disputed factual issues, and to

deny summary judgment if such an issue does exist.

United States v. Diebold, Inc., 369 U.S. 654 (1962); Tee-

A52

Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.

1974). Further, ‘‘jiIm ruling on a motion for summary

judgment, the court must construe the evidence in its

most favorable light for the party opposing the motion

and against the movant.” Bohn Aluminum & Brass

Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.

1962). If reasonable minds could differ as to a material

fact in issue, then a genuine factual dispute exists and

the motion for summary judgment must be denied.

Having thoroughly reviewed the entire record in this

case—‘‘the pleadings, depositions, answers’ to

interrogatories, and admissions on file, together with the

affidavits’’—including the declarations of plaintiffs —

contained in their several responses to the motions for

summary judgment and _ viewing said pleadings,

depositions, affidavits, and the other materials on file in

this case in a light most favorable to plaintiffs, the Court

finds that there is no genuine issue as to any material

fact which makes the granting of summary judgment

inappropriate. The Court further finds that no genuine

issue exists with respect to any fact which is material to

the dispositive issue sub judice. The only remaining

question is whether or not defendants are entitled to

judgment as a matter of law. A limitation of action issue

can be resolved as a matter of law if the undisputed facts

establish the time when a plaintiff's cause of action

accrued. American Hotel Management Associates, Inc. v.

Jones, 768 F.2d 562, 568 (4th Cir. 1985).

The Court has thoroughly reviewed the entire record

in this case including the voluminous. materials

submitted by the parties relating to the motions sub

judice. Upon consideration, the Court finds defendants’

statute of limitations argument to be well taken.

Accordingly, the Court will grant the motions for

A53

summary judgment of Chrysler and of the Union.

Finding the statute of limitations issue to be dispositive

of this case, the Court does not substantively reach the

merits of the remaining issues presently sub judice.

Upon consideration, the Court finds that no genuine

issue exists as to the following facts which are material

to the statute of limitations issue. Plaintiffs are former

employees of Chrysler whose conditions and terms of

employment, inter alia, were governed by the October 25,

1979 production and maintenance collective bargaining

agreement between Chrysler and the UAW, which

agreement by its express terms “‘continue[d] in full force

and effect until 11:59 P.M. September 14, i982. ...

Plaintiffs are members of the UAW union. Due to

economic conditions, plaintiffs were laid off from their

respective Chrysler plants. Pursuant to work opportunity

for laid-off employees (§65 of the 1979 agreement),

plaintiffs transferred to Chrysler’s Lima, Ohio tank

plant. Section 65(b) of the 1979 agreement provided that

under certain specific conditions, plaintiffs had the right

to transfer with seniority to other plants of the national

Chrysler-UAW bargaining unit including their respective

“home” Chrysler plants. In March of 1982, Chrysler sold

its defense operations including the Lima, Ohio tank

plant to General Dynamics Corporation and General

Dynamics and the UAW entered into an agreement

which provided, inter alia, that GDLS would recognize

the UAW as the exclusive bargaining agent for its

employees including plaintiffs and that GDLS would

abide by the terms of the 1979 agreement between the

UAW and Chrysler until said agreement expired on

September 14, 1982. Plaintiffs’ then local UAW unions

while employed both by Chrysler until March 16, 1982

and by GDLS thereafter until September 14, 1982, were

A54

parties to and covered by the October 25, 1979

Agreement. A June 7, 1982 letter of understanding from

Chrysler to the UAW in part, provides:

Interplant transfer rights are limited tv plants

within each corporation’s [-Chrysler and General

Dynamics-] bargaining units, and the parties agree

that such transfers cannot include inter-company

transfers from a Chrysler facility to a GDLS facility

and vice versa....

However, . . . the parties agree as follows.

1. An employee of CDI (now GDLS) who would

otherwise qualify for the right to return to a

Chrysler Corporation plant based on ... Section

65(b) of the applicable Chrysler-UAW agreements, —

may exercise the opportunity to return to his former

plant if indefinitely laid off by GDLS ..., on or

before September 14, 1982. Unless indefinitely laid

off by that date, any such employee shall lose any

right to return to Chrysler.

A May 18, 1982 letter of understanding from GDLS to

the UAW essentially provided the same transfer right to

then current employees of Chrysler who might

subsequently be interested in returning to their former

plants and ‘‘who had return rights to a GDLS facility

under ... Section 65(b) of the applicable Chrysler UAW

agreement”’ in the event said employee was permanently

laid off by Chrysler on or before September 14, 1982. The

May 18, 1982 letter further provided that any right to

transfer to an employee’s former plant ‘‘must be

exercised by September 14, 1982, and unless exercised

by such date such employee loses any right to return to

GDLS.” In July of 1982, the Union had two meetings

with the UAW Local Union No. 2075 membership of

which plaintiffs are members at which, inter alia, the

May 18, 1982 and June 7, 1982 letters of understanding

were read to said membership. The October 25, 1979

A55

agreement between Chrysler and the UAW expired

September 14, 1982. Plaintiffs’ Local UAW Union No.

2075 for the Lima, Ohio tank plant was neither a party

to nor covered by the succeeding collective bargaining

agreement between Chrysler and the UAW. Section

65—work opportunity for laid off employees—was

amended by said new agreement between Chrysler and

the UAW.

Subsequent to September 14, 1982, the UAW and

GDLS entered into a collective bargaining agreement

which covered, inter alias UAW Local Union No. 2075

and to which agreement said local union was a party. A

ratification meeting with respect to the 1982 collective

bargaining agreement between GDLS and the UAW was

held on September 27, 1982. The membership of UAW

Local Union 2075 ratified the 1982 collective bargaining

agreement between GDLS and the UAW. Neither of the

respective post-September 14, 1982 collective bargain

agreements between GDLS and the UAW and between

Chrysler and the UAW provided for inter-corporation

work opportunity transfer rights or for cross-national

bargaining unit transfer rights. Nor did either of said

post-September 14, 1982 agreements expressly or

implicitly renew or extend the May 18, 1982 and June 7,

1982 letters of understanding. No plaintiff while working

at the Lima, Ohio tank plant was indefinitely laid off

either by Chrysler before March 16, 1982 when Chrysler

sold CDI to GDLS or by GDLS before September 14,

1982 when both the October 25, 1979 agreement and the

aforesaid letters of understanding expressly expired.

Federal labor law reflects the well established and

strong federal policy favoring relatively rapid final

resolution of labor disputes. See, e.g., DelCostello, 462

U.S. at 168; United Parcel Service, Inc. v. Mitchell, 451

A56

U.S. 56, 63 (1981); Auto Workers v. Hoosier Cardinal

Corp., 383 U.S. 696, 707 (1966). The Supreme Court

stated in Wood v. Carpenter, 101 U.S. 135 (1879) that

‘Isltatutes of limitations are vital to the welfare of

society and are favored in the law.” /d. at 139.

In DelCostello v. International Brotherhood of

Teamsters, 462 U.S. 151 (1983), the United States

Supreme Court held, inter alia, that the six-month

statute of limitations period imposed by $10(b) of the

NLRA, 29 U.S. §160(b) applicable to unfair labor practice

claims is the applicable statute of limitations period

governing a hybrid §$301/fair representation claim. /d. at_

154-55. The six month statute of limitations for hybrid

§301/fair representation claims announced in DelCostello

is similarly applicable to—a claim under §101 of the

LMDRA, 29 U.S.C. §411. See, e.g., Vallone v. Local

Union No. 705, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, 755

F.2d 520, 521-22 (7th Cir. 1984); Adkins v. General

Motors Corp., 573 F. Supp. 1188, 1201 (S.D. Ohio 1983),

aff'd, 769 F.2d 330 (6th Cir. 1985). Cf. Shapiro v. Cook

United, Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per curiam).

The United States Court of Appeals for the sixth Circuit,

joining the First, Second, Third, Fourth, Fifth, Seventh,

Eighth and Eleventh Circuits, has ruled that the

DelCostello decision establishing a six month statute of

limitations for hybrid §301/fair representation claims is

to be given retrospective as well as prospective effect

and, therefore, DelCostello is applicable to all cases

pending at the time it was decided. Smith v. General

Motors Corp., 747 F.2d 372, 374-75 (6th Cir. 1984) (en

banc). Cf. Shapiro v. Cook United, Inc., supra.

The applicable six-month statute of limitations

period reflects congressiciual indication of the proper

balance between an employee's interest in vindicating his

A57

rights and the national interest in stable bargaining

relationships and in finality in labor law and industrial

peace. Adkins v. International Union of Electrical, Radio

& Machine Workers, AFL-CIO-CLC, 769 F.2d 330, 335

(6th Cir. 1985), citing, DelCostello, 462 U.S. at 171

(1983).

A hybrid §301/fair representation action accrues no

later than the time when a plaintiff knew or reasonably

should have known that a breach of the duty of fair

representation had occurred, even if some possibility of

nonjudicial enforcement remained. Former Frigidaire

Employees Ass'n v. International Union of Elecirical,

Radio and Machine Workers, Local 801, 573 F. Supp. 59,

62 (S.D. Ohio 1983), aff'd sub nom. Adkins v.

International Union of Electrical, Radio & Machine

Workers, AFL-CIO-CLC, 769 F.2d 330 (6th Cir. 1985), and

quoting Dowty v. Pioneer Rural Electric Cooperative,

Inc., 573 F. Supp. 155, 158 (S.D. Ohio 1983).

A hybrid §301/fair representation claim accrues and

the applicable statute of limitations begins to run when

the ciaimant knows or reasonably should have known of

the union’s alleged breach of its duty of fair

representation. Dowty v. Pioneer Rural _ Electric

Cooperation, Inc., 770 F.2d 52, 56 (6th Cir. 1985), cert.

denied, 106 S. Ct. 572 (1985).

“A claim accrues under section 10(b) fof the NLRA,

29 U.S.C. §$160(b)}] when the claimant discovers, or in the

exercise of reasonable diligence should have discovered,

the acts constituting the alleged violation.’’ Adkins, 769

F.2d at 335, citing, Shapiro v. Cook United, 762 F.2d 49,

51 (6th Cir. 1985) (per curiam); Howard v. Lockheed-

Georgia Co., 742 F.2d 612, 614 (11th Cir. 1984) (per

curiam); Metz v. Tootsie Roll Industries, 715 F.2d 299,

304 (7th Cir. 1983), cert. denied, 464 U.S. 1070 (1984).

A58

Causes of action for breach of a collective bargaining

agreement and breach of the duty of fair representation

‘based on entry into collective bargaining agreements

accrue, and ... [the six-month statute of limitations

period] starts to run, when the contract is signed.”

United Independent Flight Officers, Inc. v. United Air

Lines, Inc., 756 F.2d 1262, 1273 (7th Cir. 1985).

Applying the standards for accrual to the undisputed

facts of this case establishes that plaintiffs hybrid

§301/fair representation claim accrued no later than

December 10, 1982, the date of the 1982 national and

local agreement between the Union and Chrysler. Said

1982 agreement did not renew the May 18, 1982 and

June 7, 1982 letters of understanding, nor did it apply to

plaintiffs UAW Local Union 2075, nor did it provide for

either inter-corporation or cross-national bargaining unit

work opportunity transfers.-By July, 1982 plaintiffs

knew or reasonably should have known that their subject

Chrysler ‘‘home”’ plant recall/seniority rights would

terminate September 14, 1982. By September 14, 1982,

plaintiffs knew or reasonably should have known that

the October 25, 1979 agreement between Chrysler and

the UAW expired by its express terms. Further, by

September 14, 1982, plaintiffs knew or reasonably should

have known that the express prerequisite for returning

to their ‘‘home”’ Chrysler plants with seniority had not

occurred, to wit, being indefinitely laid off by GDLS

before September 14, 1982. By September 27, 1982,

plaintiffs knew or reasonably should have known that

the 1982 collective bargaining agreement between the

UAW and GDLS covered plaintiffs’ UAW Local Union

2075, said 1982 agreement did not renew or extend the

May 18, 1982 or the June 7, 1982 letters of

understanding and that said 1982 agreement did not

provide for inter-corporation or cross-national bargaining

unit work opportunity transfers.

A59

By December, 1982 subsequent to ratification of the

December 10, 1982 agreement between the UAW and

Chrysler, plaintiffs knew or reasonably should have

known that the Lima, Ohio tank plant UAW Local Union

2075 was not covered by said agreement, that the

aforesaid letters of understanding were not renewed by

said 1982 agreement, and that said 1982 agreement did

not provide for inter-corporation or cross-national

bargaining unit work opportunity transfer. In sum, the

Court finds that plaintiffs’ hybrid §301 fair

representation claim accrued no later than December 10,

1982 by which time plaintiffs discovered or in the

exercise of reasonable diligence should have discovered

the acts constituting either the alleged violation of the

abrogation of their Chrysler “‘home’”’ plant recall/seniority

rights or the fact of defendants’ agreement that

plaintiffs’ said ‘‘home’”’ plant recall/seniority rights would

terminate on September 14, 1982. Plaintiffs discovered or

in the exercise of reasonable diligence should have

discovered that their Chrysler ‘home’ plant

recall/seniority rights were impaired or, as alleged,

abrogated by the actions of defendants (the gravamen of

their complaint), as early as July, 1982, and no later than

the dates of ultimate ratification of the respective 1982

agreements between the UAW and GDLS and between

the UAW and Chrysler. Finally, plaintiffs cause of action

for the Union’s violation of §101 of the LMDRA, 29

U.S.C. $411, for failure to permit plaintiffs to ratify both

the aforesaid letters of understanding and the March 16,

1982 agreement between GDLS and the UAW accrued

no later than July, 1982.

It is well established that the equitable tolling

doctrine “‘is read into every federal statute of limitation.”

Ott v. Midland-Ross Corp., 600 F.2d 24, 30 (6th Cir.

1979), quoting Holmberg v. Armbrecht, 327 U.S. 392,

A60

397 (1946). The traditional rule with respect to accrual of

a cause of action is that a plaintiff must demonstrate

fraudulent concealment of the critical facts before accrual

will be postponed. Diminnie v. United States, -728 F.2d

301, 305 (6th Cir. 1984), cert. denied, 105 S. Ct. 146

(1984).

The Sixth Circuit has stated that “‘[i]f the defendant

made a misrepresentation of material fact for the

purpose of inducing a plaintiff to delay suit or release

him from liability, .. . [plaintiff] is estopped to plead the

statute of limitations or to interpose the release as a bar

to suit, provided the plaintiff has acted in justifiable -

reliance upon the misrepresentation.” Ort v. Midland-

Ross Corp., 600 F.2d 24, 31 (6th Cir. 1979).

Fraudulent concealment must consist of affirmative

acts or representations which are calculated to, and in

fact do, prevent the discovery of the cause of action.

Mere silence of the defendant and failure by the plaintiff

to learn of the right of action, alone, are not sufficient.

Curry v. A. H. Robbins, 775 F.2d 212, 218 (7th Cir.

1985). ,

After plaintiffs should have discovered that they had

a cause of action, there is no tolling of the applicable

statute of limitations period. See generally Dayco v.

Goodyear Tire & Rubber Co., 523 F.2d 369 (6th Cir.

1975). Cf. Norton-Children’s Hospitals, Inc. v. James E.

Smith & Sons, Inc., 658 F.2d 440, 444 (6th Cir. 1981).

The party alleging fraudulent concealment must plead

the circumstances giving rise to it with particularity.

See, e.g., Dayco Corp. v. Goodyear Tire & Rubber Co.,

523 F.2d at 394. In order to establish fraudulent

concealment tolling the running of the applicable statute

of limitations period, plaintiffs must establish, ‘‘(1)

wrongful concealment of their actions by the defendants;

A6l

(2) failure of the plaintiffjs] to discover the operative

facts that are the basis of ... [their] cause of action

within the limitations period; and (3) plaintiffjs]' . . . due

diligence until discovery of the facts.” Id., at 394, citing,

Weinberger v. Retail Credit Co., 498 F.2d 552 (4th Cir.

1974). An injured party has a positive duty to use

diligence in discovering his cause of action within the

limitations period. “Any fact that should excite his

suspicion is the same as actual knowiedge of his entire

claim.” Dayco, 523 F.2d at 394. Indeed, “the means of

knowledge are the same thing in effect as knowledge

itself... Wood v. Carpenter, 101 U.S. 135, 143 (1879).

In order to toll the running of the statute of

limitations period applicable to plaintiffs’ causes of

action based on the alleged fraudulent concealment of

material facts by defendants, plaintiffs must establish

that defendants affirmatively acted to induce delay on

the part of plaintiffs in commencing their lawsuit. A

plaintiff's ignorance of his cause of action does not, by

itself, satisfy the requirements of due diligence, nor will

it toll the statute of limitations. Campbell v. Upjohn Co.,

676 F.2d 1122, 1127 (6th Cir. 1982), citing, Akron

Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 234

(6th Cir. 1974), cert. denied, 419 U.S. 997 (1974).

Plaintiffs’ mere ignorance of language in or charges

to the various agreements, by itself, did not satisfy the

requirement of due diligence and was not, therefore,

sufficient to toll the statvte of limitations. Shapiro v.

Cook United, Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per

curiam). In order to prove fraudulent concealment,

plaintiffs must show that they failed to discover facts

that serve as the basis of their cause of action despite

due diligence on their part to discover same, and that the

concealment was fraudulently committed by defendants.

A62

Shapiro, 762 F.2d at 51, citing, Diminnie v. United States,

728 F.2d 301, 305 (6th Cir. 1984). Upn consideration, the

Court finds plaintiffs’ assertion of fraudulent

concealment and their arguments advanced in support

thereof, to be without merit. The Court further finds that

plaintiffs have failed to establish the alleged fraudulent

concealment of defendants to toll the statute of

limitations applicable to their causes of action.

It is the general rule that a statute of limitations

commences to run at the time the cause of action

accrues. See Annot., 32 A.L.R.4th 260, 266 (1984).

Accordingly, the Court holds that plaintiffs’ causes of -

action against defendants accrued and the applicable

statute of limitations period commenced to run no later

than December 10, 1982.

The undisputed facts demonstrate that plaintiffs’

Chrysler ‘“‘home”’ plant return/seniority rights which they

enjoyed under the 1979 agreement, terminated

September 14, 1982. It is clear that plaintiffs’ mere

ignorance of their rights or of the terms or the effect

thereof of the various agreements pertinent to this

‘awsuit, is not sufficient to overcome the limitations

defense. Dayco v. Firestone Tire & Rubber Co., 386 F.

Supp. 546, 549 (N.D. Ohio 1974), aff'd, 523 F.2d 389 (6th

Cir. 1975), and citing, Akron Presform Mold Co. v.

McNeil Corp., 496 F.2d 230, 234 (6th Cir. 1974). See also

Ashland Oil Co. of California v. Union Oil Co. of

California, 567 F.2d 984, 988 (Temp. Emer. Ct. App.

1977), cert. denied, 435 U.S. 994 (1978), and citing, Wood

v. Carpenter, 101 U.S. 135, 143 (1879).

Further, plaintiffs’ filing of a grievance did not toll

the running of the applicable statute of limitations

period. See, e.g., Vallone, 755 F.2d at 522.

A63

As to employees of the Lima, Ohio tank plant

including plaintiffs, the October 25, i979 collective

bargaining agreement terminated September 14, 1982.

Said termination was in accordance with the express

terms of the 1979 agreement and the June 7, 1982 letter

of understanding. The Court finds that at some point

prior to six months preceding the date on which this

lawsuit was commenced, plaintiffs discovered or, in the

exercise of reasonable diligence, should have discovered

the acts of defendants constituting the violations alleged

by plaintiffs. Metz v. Tootsie Roll Industries. Inc., 715

F.2d 299, 304 (7th Cir. 1983), cert. denied, 464 U.S. 1070

(1984). The Court finds that plaintiffs’ causes of action

accrued and the applicable statute of limitations period

began to run when plaintiffs discovered or in the exercise

of reasonable diligence should have discovered the

agreements between the defendants (the May i8, 1984

and June 7, 1982 letters of understanding and the

September 27, 1982 GDLS/UAW agreement) which

plaintiffs claim abrogated or extinguished their Chrysler

‘home plant recall/seniority rights.

The Court finds that plaintiffs commenced this

lawsuit on March 23, 1984. Having determined that

plaintiffs causes of action accrued no later than

December 10, 1982, that is, more than six months before

this action was commenced, the Court concludes that

plaintiffs’ action having been filed more than six months

after the accrual of their causes of action, is untimely

and, accordingly, time-barred by the applicable six

month statute of limitations. DelCostello v. International

Brotherhood of Teamsters, supra.

A64

THEREFORE, for the foregoing reasons, good cause

appearing, it is

ORDERED that the motion of defendant Union to

strike plaintiffs’ jury demand be, and it hereby is,

GRANTED); and it is

FURTHER ORDERED that plaintiffs’ motion for

reconsideration be, and it hereby is, DENIED; and it is

FURTHER ORDERED that plaintiffs’ motion both

for reconsideration and for leave to file a reply be, and it

hereby is, DENIED; and it is

FURTHER ORDERED that defendant Chrysler's

motion for leave to respond to plaintiffs’ supplemental

response be, and it hereby is, DENIED; and it is

FURTHER ORDERED that the motion of

detendant General Dynamics Land Systems, Inc. to

dismiss be, and it hereby is, GRANTED; and it is

FURTHER ORDERED that the motion of

defendant Union for summary judgment be, and it

hereby is, GRANTED; and it is

FURTHER ORDERED that the motion of

defendant Chrysler for summary judgment be, and it

hereby is, GRANTED.

/si JOHN W. PoTTeR

United States District Judge

A65

Judgment Entry of the District Court

(Filed April 17, 1986)

No. C 84-7273

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHRYSLER WORKERS ASSOCIATION, et ai.,

v.

CHRYSLER CORPORATION, et al.

Decision by Court. This action came to trial or

hearing before the Court with the judge (magistrate)

named above presiding. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the

motion of defendant General Dynamics Land Systems,

Inc. to dismiss be, and it hereby is, granted. The motion

of defendant Union for summary judgment be, and it

hereby is, granted. The motion of defendant Chrysler for

summary judgment be, and it hereby is, granted.

/s/ JOHN W. PoTTER

United States District Judge

a

A66

Order of the District Court Modifying Opinion

(Filed April 25, 1986)

Case No. C 84-7273

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DistrRIcT OF OHIO

WESTERN DIVISION

CHRYSLER WORKERS ASSOCIATION, et al.,

Plaintiffs,

VS.

CHRYSLER CORPORATION, et al.,

ie Defendants.

Porrer, J.:

The first sentence of the second full paragraph on

page 26 [A61] of the Court’s April 16, 1986 opinion and

order is hereby amended by interlineation to read as

follows:

Plaintiffs’ mere ignorance of language in or changes

to the various agreements, by itself, did not satisfy

the requirement of due diligence and was not,

therefore, sufficient to toll the statute of limitations.

IT IS SO ORDERED.

ls) JOHN W. PoTTer

United States District Judge

A67

Order of the United States Court of Appeals

for the Sixth Circuit Denying Petition

for Rehearing

(Filed January 19, 1988)

No. 86-3361

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

CHRYSLER WORKERS ASSOC., et ai.,

Plaintiffs-Appeliants,

v.

CHRYSLER CORPORATION, et ai.,

Defendants-Appellees.

ORDER

Before: MARTIN, WELLFORD and NELSON, Circuit Judges

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the

original hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HENMAN

Clerk

’

A68

Letter from UAW International Executive

Board Indicating Date of Decision

SOLIDARITY HOUSE

5000 East Jefferson Ave.

Detroit, Michigan 46214

Phone (313) 624-5000

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

& AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA—UAW

OwEN F. BIEBER, President

RAYMOND E. MAJERUS, Secretary-Treasurer

Vice-Presidents

Bill Casstevens ¢ Donald F. Ephlin ¢ Odessa Komer

Marc Stepp * Robert White ¢ Stephen P. Yokich

December 1, 1983

Mr. Joseph T. Gaw, Member

Local Union 2075

R.R. 5, Box 8B

New Castle, Indiana 47362

Dear Brother Gaw:

Your appeal to the International Executive Board,

submitted under Article 33, Section 3(d) of the

International Constitution, has been processed by my

office to the International Executive Board in accordance

with Article 33, Section 3.

A69

In accordance with the established procedure, the

attached is the decision of the International Executive

Board on your appeal.

Fraternally,

Owen Bieber

President

OB:gms

opeiu494

attachment

CERTIFIED MAIL

cc: Joseph Tomasi, Director, Region 2B

Dallas Sells, Director, Region 3

Ed Finn, Int. Rep., Region 2B

Donnie Davis, Int. Rep., Region 3

Robert Stansell, Int. Rep., Chrysler Department

Stephen L. Jones, President, LU 371

Michael Atkins, Recording Secretary, LU 371

Darrell Cole, President, LU 2075

Robert A. Mitchem, Recording Secretary, LU 2075