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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1033

## Text

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‘ ~« > ph
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

Al

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).

A2

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

A3

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

A5

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.

A7

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:

A8

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1607%3A2. Public record. Not legal advice.