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Schaub v. K&L Distributors, Inc (06/24/2005) sp-5911
Schaub v. K&L Distributors, Inc (06/24/2005) sp-5911
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KYLE SCHAUB, )
) Supreme Court No. S-11186
Appellant, )
) Superior Court No.
v. ) 3AN-02-09507 CI
)
K&L DISTRIBUTORS, INC., ) O P I N I O N
)
Appellee. ) [No. 5911 - June 24, 2005]
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Thomas R. Lucas, Law Office of Thomas R.
Lucas, Anchorage, for Appellant. Jon T. Givens, Bankston,
Gronning, O=Hara, Sedor, Mills, Givens & Heaphey, PC,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and
Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Kyle Schaub sued K&L Distributors, Inc. for breach of contract after
being terminated for failing to notify his supervisor of his absence from three
consecutive days of work, as required under the parties= collective bargaining
agreement. The superior court granted K&L=s motion for summary judgment,
concluding that Schaub failed to exhaust his administrative remedies and was not
excused from doing so. Because we conclude that Schaub=s claim was time-
barred, we affirm the superior court=s order granting summary judgment to K&L
without reaching the exhaustion of remedies question.
II. FACTS AND PROCEEDINGS
A. Facts
Kyle Schaub worked as a delivery driver for K&L Distributors pursuant
to a collective bargaining agreement (CBA) between K&L and Teamsters Union
Local No. 959 of the International Brotherhood of Teamsters. Schaub missed
work due to medical problems for much of May and all of June and July before
being terminated in July 2000.
The applicable collective bargaining agreement prevents K&L from
discharging an employee unless the employee has received a written warning
specifically stating the grounds for K&L=s dissatisfaction. The CBA requires that
a doctor=s slip be provided after the third consecutive day off. K&L=s procedure
requires that A[a]ll doctor=s excuses need to be stamped with the time clock and
deposited in the drop box provided. The excuses are due upon returning to
work.@ In a letter of agreement between K&L and the Union, the absentee policy
provides:
In the case of an absence, you are required to notify
your immediate supervisor/management no later than
one (1) hour before the start of your work day. Failure to
notify your supervisor of your absence for three (3)
consecutive days may be considered a voluntary quit.
Extenuating circumstances for absence or tardiness will
be considered on an individual basis. Repeated
absences or tardiness will result in written warnings or
even termination.[ ]
Schaub first visited his eye doctor in April 2000 because he was
experiencing distortion and blind spots in his vision. At an April 17, 2000
appointment, his doctor informed him that he probably had a tumor behind his eye
and referred him to an eye hospital in Florida. On April 30 Schaub arranged with
K&L to take leave from May 15 until May 19 for his May 17 appointment in Florida.
Schaub was injured at work on May 4 but he continued to work. He
then took a personal leave of absence from May 8-12. On May 12 Schaub saw
Dr. Deleo about his May 4 work injury and Dr. Deleo determined that Schaub had
a hernia. At the appointment, Dr. Deleo issued a work status report restricting
Schaub=s work to light lifting. Schaub provided the report to K&L that same day.
Also on May 12, Schaub filled out a workers= compensation form for his May 4
injury.
At Schaub=s May 17 appointment in Florida, the doctors determined
that he did have a tumor behind his eye and Schaub underwent treatment on May
19. Schaub scheduled a follow-up appointment for May 24. Schaub called K&L
and left a message for his supervisor, David McMullen, at 12:05 a.m. Alaska time
on May 22 informing McMullen that he would be in Florida for the rest of the
week. Then on May 23 Schaub spoke with someone at K&L and explained in
detail why he was in Florida and that he would not be returning to Alaska for one
to two weeks. On May 24 Schaub again attempted to speak with McMullen and
left a message about his return from Florida.
On May 30 McMullen sent a letter to Schaub about his absence from
work on May 22 informing Schaub that simply leaving messages did not mean
that absences were approved. Schaub returned to Anchorage on June 3, 2000
and received the letter on June 5 but did not respond because he thought that he
was unable to work due to the hernia.
On June 13 Schaub returned to Dr. Deleo who again detected a
hernia and provided another work status report, which Schaub submitted to K&L.
The work status report listed the same work limitations as the previous work
status report and recommended that the limitations remain in effect until Schaub=s
appointment with another doctor on June 22. That night, a K&L dispatcher called
Schaub to inform him that he was scheduled to work the next day. Schaub
informed the dispatcher that he had just submitted a work status report that
prevented him from performing warehouse work and asked the dispatcher to tell
the night supervisor of his medical condition. Later that night, upon receiving a
message from the night supervisor that Schaub would be fired if he did not show
for work the next day, Schaub called and told the night supervisor about his
medical restriction. Schaub told the night supervisor that McMullen was aware of
his restriction and was informed that McMullen would be on vacation until June
19.
From June 19 until July 7, McMullen and Schaub left messages for
each other but did not connect; in the messages Schaub informed McMullen
about his return to Florida for follow-up on his eye. On June 20 K&L wrote
Schaub a letter informing him that he was scheduled to do light work that
accommodated his medical restriction on June 26. The letter was mailed on June
21. Although the letter does not indicate it, Schaub states that the only light work
that K&L ever offered him was to operate a forklift, which was not permitted by his
work status report.
Schaub saw another doctor on June 27 who did not detect a hernia
but still recommended work restrictions for two more weeks before releasing
Schaub to full activity. Schaub claims that he was not aware of the
recommendation to release him to full activity. Dr. Deleo referred Schaub to a
different doctor for a second opinion and an appointment was scheduled for July
6. The doctor did not detect a hernia at the July 6 appointment but, in a letter,
recommended a light workout and stretching program. Schaub claims that he
never saw this letter.
On July 7 Schaub returned to Florida for his July 10 eye appointment.
That same day, Schaub=s father received McMullen=s June 20 letter informing
him that he was scheduled to do light work and read it to Schaub on July 8.
Schaub claims that he was confused by the letter because McMullen apparently
knew about his medical appointments; Schaub still thought that he had a hernia;
Schaub was unaware of any warehouse work that satisfied the restrictions; and
McMullen knew that Schaub was in Florida for his eye. Schaub also describes
several conversations with an employee of the Alaska Teamsters Employer
Service Corporation regarding his health insurance for his eye problem. The
employee told Schaub that he was entitled to leave for his eye and that she would
have a union business agent contact K&L=s human resources department about
the leave.
K&L terminated Schaub=s employment by a letter dated July 19, 2000
because Schaub Afail[ed] to notify [his] supervisor of [his] absence for three (3)
consecutive days.@ The letter treated Schaub=s absence as a voluntary
resignation. From July 10 through August 21, Schaub had various eye
appointments for treatment and contact lenses. Upon Schaub=s August 23 return
to Alaska, Schaub received his final paycheck from K&L but claims he never
received the July 19 termination letter.
Shortly after receiving his final paycheck, Schaub contacted the union
and indicated that he wished to file a grievance. Although Schaub told two
different business agents that he was not notified of his termination until August
23, they each informed him that his grievance was time-barred because the
termination occurred on July 19. The union never filed a grievance on Schaub=s
behalf. Schaub did not return to work at K&L.
B. Proceedings
Schaub filed a pro se complaint against K&L on July 31, 2002,
alleging that he was wrongfully terminated. Schaub did not file suit against the
union. K&L moved for summary judgment on January 6, 2003, arguing that K&L
properly terminated Schaub due to his failure to report to work and that Schaub
failed to exhaust his administrative remedies. Schaub opposed the motion.
Superior Court Judge Peter A. Michalski granted K&L=s motion for summary
judgment on the ground that Schaub failed to exhaust his administrative remedies
and was not excused from doing so.
Schaub filed a motion for reconsideration on May 16, 2003, arguing
that he was excused from exhausting his administrative remedies. Upon the
superior court=s request, K&L filed an opposition to reconsideration on June 25,
2003. The superior court denied plaintiff=s motion for reconsideration on July 21,
2003, determining that the union did not have Asole power under the contract to
invoke the higher levels of the grievance procedure@ because Schaub could have
filed a grievance report on his own and therefore was not excused from
exhausting his remedies.
Although we disagree with the superior court=s reasoning regarding
Schaub=s failure to exhaust his remedies, we conclude that Schaub=s suit was
time-barred. We therefore affirm the superior court=s order granting summary
judgment to K&L on this alternative ground.
III. DISCUSSION
A. Standard of Review
This court reviews a grant of summary judgment de novo and will
affirm the summary judgment Aif there are no genuine issues of material fact and
if the moving party is entitled to judgment as a matter of law.@ In reviewing a
motion for summary judgment, we draw all reasonable inferences in favor of the
nonmoving party. We may affirm summary judgment on grounds not considered
by the superior court.
B. Schaub=s Claim Is a Federal Claim Arising Under Section 301 of
the Labor Management Relations Act.
For cases involving private employers, claims that are founded
directly on rights created by collective bargaining agreements and claims
Asubstantially dependent upon analysis of a collective-bargaining agreement@ are
governed by ? 301 of the Labor Management Relations Act. The parties agree
that ? 301 completely preempts any state law cause of action for breach of a
collective bargaining agreement. Schaub=s wrongful termination claim is
predicated upon a breach of the collective bargaining agreement and is therefore
governed by ? 301.
K&L argues that Schaub=s complaint does not state a cause of action
under federal law and therefore does not state any claim upon which relief can be
granted. But the fact that Schaub=s pro se complaint does not mention a federal
statute does not mean that it fails to state a federal claim. In Caterpillar, Inc. v.
Williams, the United States Supreme Court noted that suits brought under ? 301
are subject to complete preemption and observed that Aonce an area of state law
has been completely pre-empted, any claim purportedly based on that pre-
empted state law is considered, from its inception, a federal claim, and therefore
arises under federal law.@ Here, both parties agree that Schaub=s claim is
governed by ? 301. Although Schaub=s complaint does not specifically refer to ?
301, we conclude that the complaint asserted a federal claim from its inception.
C. A Genuine Question of Material Fact Exists as to Whether
Schaub Attempted To Exhaust His Remedies.
In its order granting summary judgment to K&L, the superior court
found that Schaub had failed to exhaust his contractual and administrative
remedies because ASchaub could have filed a Field Grievance Report himself; he
could have asked the union Shop Steward to file a Field Grievance Report on his
behalf; or he could=ve pressed the Union to file a grievance on his behalf.@
Because Schaub presented genuine issues of material fact as to his ability to file
a grievance on his own, we conclude that the superior court=s basis for granting
summary judgment was erroneous.
It is well-settled law that an employee must attempt to exhaust
exclusive grievance and arbitration procedures established by a collective
bargaining agreement before obtaining judicial review. However, grievance
procedures mandated by a collective bargaining agreement may prove
unworkable when the employer repudiates the grievance procedures or when the
union wrongfully refuses to process the grievance. In the latter instance, Athe
wrongfully discharged employee may bring an action against his employer in the
face of a defense based upon the failure to exhaust contractual remedies,
provided the employee can prove that the union as bargaining agent breached its
duty of fair representation in its handling of the employee=s grievance.@
A prerequisite for this type of claim is that Athe union has sole power
under the contract to invoke the higher stages of the grievance procedure, and . .
. the employee-plaintiff has been prevented from exhausting his contractual
remedies by the union=s wrongful refusal to process the grievance.@ K&L argues
that Schaub could have filed his own grievance under the grievance procedures
outlined in his collective bargaining agreement. Schaub acknowledges that step
one of the CBA grievance procedure would have allowed him to file a grievance
on his own behalf, but argues that he did not have access to the appropriate form
because the form was kept at the K&L offices and Schaub had already been
terminated. Schaub also points out that the union had informed him that the
grievance was time-barred and nobody informed him that he could file a
grievance on his own. This factual question C that is, whether Schaub actually
could have filed his own grievance C is sufficient to preclude summary judgment
on the question of whether Schaub attempted to exhaust the grievance remedies
outlined in his CBA, as required by Vaca. In addition, Schaub points to his
various rejected requests that the union file a grievance as evidence that he did
attempt to pursue a grievance. Drawing reasonable inferences in Schaub=s favor,
as required under our summary judgment standard, the superior court could
have concluded that Schaub pursued his grievance to the fullest extent possible.
Moreover, it is not clear what Schaub could have accomplished by
filing the grievance without the cooperation of his union. In an order denying
Schaub=s motion for reconsideration, the superior court wrote of step one: ATo
move past the initial steps of the grievance procedure here, the grievance needed
only to be filed C the result of filing would be an immediate mandatory meeting
with the employee, his Union representative, and his immediate supervisor.@ But
Schaub=s collective bargaining agreement clearly requires union participation in
steps two and three. Thus, even if Schaub had filed his own grievance, he could
not have moved beyond step one without the assistance of his union. Schaub=s
situation meets the requirement in Vaca that Athe union has sole power under the
contract to invoke the higher stages of the grievance procedure.@
If the superior court finds that an employee did not exhaust
contractual remedies, the next step is to determine whether the employee was
prevented from doing so by the union=s wrongful refusal to process the
grievance. In Vaca, the Supreme Court observed the contradiction inherent in
allowing a union=s activities to excuse an employee from exhausting contractual
remedies in a suit against the employer where the employer had no control over
the union=s actions. But the Supreme Court concluded that if the employer has
committed a wrongful discharge, an employee should not be prevented by the
union=s breach from pursuing any remedies. In its order denying Schaub=s
motion for reconsideration, the superior court found that Schaub did not satisfy
this court=s requirements for excusal from exhaustion, concluding that Schaub=s
union Adid not act with bad faith, or in an arbitrary or capricious manner.@ The
superior court also concluded that the union=s refusal to file Schaub=s grievance
could not constitute excusal because Schaub could have filed the grievance on
his own. As discussed above, Schaub raised a genuine factual issue as to
whether he could have filed his own grievance. We now examine what
constitutes breach of a union=s duty of fair representation.
Under the standard set forth in Vaca, A[a] breach of the statutory duty
of fair representation occurs only when a union=s conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory, or in bad faith.@ The Vaca
standard presents a formidable challenge to employees, but the Supreme Court
observed that the union in Vaca Amight well have breached its duty had it ignored
[the employee=s] complaint or had it processed the grievance in a perfunctory
manner.@ The standard for determining when a union=s unintentional mistake
amounts to unfair representation is an evolving one, and most courts require
more than a mere showing that a union=s handling of a grievance was
perfunctory. In one case involving employee discharges, the Ninth Circuit
observed that unions must undertake some investigation of grievances brought to
their attention but that the sufficiency of the union=s actions will vary with each
case. The Ninth Circuit Court reasoned: AAlthough we afford unions a
reasonable range of discretion in deciding how best to handle grievances, union
conduct that shows an egregious disregard for the rights of union members
constitutes a breach of the duty of fair representation.@ The court also noted
that the fact that employees had been discharged put an additional responsibility
on the union, stating that Athe Union needed to exercise special care in handling
petitioners= grievance because they concerned discharges, the most serious
sanction an employer can impose.@
In this case, Schaub alleges facts indicating that the union may have
misinterpreted the CBA when it refused to process his grievance, resulting in
Schaub missing a grievance filing deadline that he otherwise could have met.
Schaub testified in a deposition that his union informed him that it could not file
his grievance because more than ten days had passed since his termination.
Schaub also stated in an affidavit that he never received the July 19 letter
terminating his employment and explained that he first learned of his termination
when he received his final paycheck in late August:
I returned to Anchorage on August 23, 2000. When I
got my mail I received a final paycheck from K&L. I
contacted the Teamsters Union within a day or two of
my arrival and requested to file a grievance. The first
Business Agent I spoke to . . . told me it was too late to
file a grievance since I had been fired on July 19. I told
him I knew nothing about being fired on July 19, that I
only learned I had been terminated when I got home and
had my final paycheck in the mail, on August 23.
Another Business Agent, Mr. Trosper, told me the same
thing C I could not file a grievance because it was too
late. Although I requested a grievance to be filed, the
union refused to do so.
Article 8, section 8.02 of Schaub=s collective bargaining agreement allows an
employee twenty work days from Awhen the employee had, or reasonably should
have had, notice of the grievance@ to file a grievance regarding a termination.
Similarly, article 6, section 6.06 allows an employee twenty work days after a
notice of termination to file a grievance. When interpreting collective bargaining
agreements, courts Awill if possible give effect to all parts of the instrument and an
interpretation which gives a reasonable meaning to all its provisions will be
preferred to one which leaves a portion of the writing useless or inexplicable . . .
.@ Applying this principle, we conclude that the Areasonably should have had
notice@ language in section 8.02 applies to section 6.06 as well.
Federal case law and the collective bargaining agreement indicate
that the twenty-day deadline for filing Schaub=s grievance did not begin to run until
Schaub received actual notice of his termination. In a case examining the
timeliness of a written notice mailed by a union the day before Thanksgiving,
resulting in late receipt of the notice, the Ninth Circuit observed that the general
rule for written notice is that the intended recipient must receive actual notice.
The federal appeals court wrote: AWhere the giving of written notice is required
by statute or contract and the manner of giving the notice is not specified, the
general rule is that [there] must be personal service of the notice. However, it is
sufficient to show that the party to be notified received actual written notice, the
means employed being unimportant.@ The court continued: AThe power of
termination of a contract of employment, or of any other continuing contract can
be effectively exercised only by bringing home notice to the other party, not by
merely mailing it to him.@ Schaub=s collective bargaining agreement states that
the employee Awill be asked to sign an acknowledgment of receipt@ of the
discharge. This provision indicates that actual notice of the termination was
required before the twenty-day deadline for filing a grievance began to run.
However, we need not reach the question of whether the union=s handling of
Schaub=s complaint was perfunctory and its refusal to file a grievance wrongful
under Vaca because we conclude that Schaub=s claim is time-barred.
D. Schaub=s Claim Is Time-Barred Because a Six-Month Statute of
Limitations Applies.
In DelCostello v. International Brotherhood of Teamsters, the United
States Supreme Court held that a six-month statute of limitations applies to
Ahybrid@ claims in which an employee must prove both that the employer
breached a provision of the collective bargaining agreement and that the union
breached its duty of fair representation in order to prevail. Schaub
acknowledges that his claim is a hybrid claim but argues that it is subject to the
three-year statute of limitations that applies to breach of contract claims under
Alaska law. Because Schaub=s claim is hybrid, we conclude that the six-month
statute of limitations adopted in DelCostello applies to this case.
1. Schaub=s claim is a hybrid claim.
If Schaub=s claim were a straightforward suit under ? 301 for breach
of the collective bargaining agreement, the suit would be subject to the state
statute of limitations for contract actions. But the collective bargaining
agreement in this case contains mandatory grievance and arbitration procedures
in which Schaub=s union must participate. As discussed above, in order to prevail
in his suit against K&L, Schaub must demonstrate both that his discharge violated
the collective bargaining agreement and that his union breached its duty of fair
representation. This makes Schaub=s claim hybrid.
In DelCostello, the Supreme Court explained that a claim may be
hybrid even when the employee chooses to sue only the employer or only the
union. The Supreme Court reasoned: AThe 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 straightforward breach of
contract suit under ? 301, as was Hoosier, but a hybrid ? 301/fair representation
claim . . . .@ This is the situation in Schaub=s case. As one court observed,
Awhat makes a case a >hybrid= action against both union and employer is the
nature of the claim, not the identity of the parties.@ In fact, Schaub
acknowledges in his briefing that his claim is hybrid. Having determined that
Schaub=s claim is hybrid, we next examine whether his claim is subject to the six-
month statute of limitations applied in DelCostello.
2. Schaub=s case is subject to the six-month statute of
limitations applied by the Supreme Court in DelCostello.
In DelCostello, the Supreme Court Aborrowed@ the six-month statute
of limitations from ? 10(b) of the National Labor Relations Act and applied it to
two cases in which employees sued both the employer and the union. But the
DelCostello Court made clear that the six-month statute of limitations applies to
suits in which the employee sues only one party, so long as the claim is a hybrid
claim. Because Schaub=s claim is hybrid, we conclude that it is subject to the
six-month statute of limitations from DelCostello.
Schaub relies on our decision in Quinn v. Alaska State Employees
Ass=n to support his argument that Alaska=s three-year statute of limitations for
breach of contract actions applies to his claim. In Quinn, we observed that Awhen
an employee only sues the employer for breach of a collective bargaining
agreement, the state statute of limitation for contract actions applies.@ However,
this reasoning is subject to the caveat that the six-month statute of limitations
from DelCostello applies to ? 301 claims where the employee must prove that the
union breached its duty of fair representation in order to prevail in the claim
against the employer. In the Quinn opinion there is no discussion of whether
Quinn=s claims C for unpaid overtime and penalties C were subject to grievance
procedures in the collective bargaining agreement; without such coverage there
would be no duty to prove a union breach of its duty of fair representation.
Schaub also argues that his case should not be controlled by
DelCostello because it is analogous to other cases in which courts have applied
state statutes of limitations to labor disputes. Schaub points to Hoosier, a case in
which the United States Supreme Court held that a state statute of limitations
applied to a suit brought by an employee against his employer under ? 301 of the
Labor Management Relations Act for breach of a collective bargaining
agreement. The Hoosier Court concluded that a uniform federal statute of
limitations was not necessary for such cases, observing that A[t]he need for
uniformity . . . is greatest where its absence would threaten the smooth
functioning of those consensual processes that federal labor law is chiefly
designed to promote C the formation of the collective agreement and the private
settlement of disputes under it.@ Schaub argues that neither process is
implicated in his case because he only contends that the union failed to file a
timely grievance on his behalf.
But Schaub overlooks the fact that the DelCostello Court
distinguished Hoosier on the ground that the claim in Hoosier was a
straightforward suit against the employer, rather than a hybrid claim. Unlike the
claims in DelCostello and Schaub=s claim in the instant case, the suit in Hoosier
did not involve an agreement to submit disputes to arbitration. Moreover, the
union in Hoosier brought the suit, rather than the employee. Therefore, the
claimant in Hoosier did not need to prove a breach of the duty of fair
representation on the part of the union in order to prevail against the employer.
The DelCostello Court reasoned that the application of the state statute of
limitations in Hoosier was based on the Aobvious and close analogy@ between a
straightforward ? 301 suit and an ordinary breach of contract case. The
DelCostello Court rejected that analogy for hybrid ? 301/fair representation claims,
concluding instead that hybrid cases more closely resemble the situation
presented by claims under ? 10(b) of the National Labor Relations Act.
Schaub attempts to distinguish his case from Hines v. Anchor Motor
Freight, Inc. and from Vaca, earlier cases that the DelCostello Court indicated
would have been good candidates for the six-month statute of limitations from ?
10(b). In Hines, the union took the employees= grievance through the arbitration
process. In Vaca, the union filed a grievance on behalf of an employee but
failed to take the employee=s grievance to arbitration. Schaub contends that his
case differs from the cases in DelCostello, Hines, and Vaca because Schaub=s
union never attempted to settle his dispute. But the DelCostello Court
contemplated Schaub=s situation when it decided to apply the six-month statute of
limitations from ? 10(b) rather than state limitations periods for vacating arbitration
awards:
Application of [a state] arbitration statute seems
straightforward enough when a grievance has run its full
course, culminating in a formal award by a neutral
arbitrator. But the union=s breach of duty may consist of
a wrongful failure to pursue a grievance to arbitration, . .
. or a refusal to pursue it through even preliminary
stages. The parallel to vacation of an arbitral award
seems tenuous at best in these situations; it is doubtful
that many state arbitration statutes would themselves
cover such a case in a commercial setting.[ ]
Thus, the DelCostello Court contemplated cases similar to Schaub=s when it
chose to apply the limitations period from ? 10(b) instead of state law to hybrid
claims.
K&L points out that A[a]pplying a longer limitations period to hybrid
claims involving a union that has declined to file a grievance would provide an
incentive for unions to forsake the grievance processes to permit employees to
bring separate suit and thereby make an end-run around the private procedures
that federal labor law is intended to encourage.@ An equally important policy
consideration in this case is that declining to apply DelCostello would give
claimants in Schaub=s position an incentive to sue only one defendant in order to
avoid application of DelCostello=s six-month limitations period. We note that other
courts examining this question have held that the six-month statute of limitations
applies to all hybrid claims, regardless of whether the claimant sues the union, the
employer, or both. Courts that have declined to follow DelCostello have done
so only when the cases are not hybrid claims or are not brought under the
National Labor Relations Act. For the reasons discussed above, we conclude
that Schaub=s claim is subject to the six-month statute of limitations that the
Supreme Court established for hybrid claims in DelCostello.
The DelCostello Court did not specify when a claim accrues for
purposes of the statute of limitations, and courts make this determination on a
case-by-case basis. In Patterson, we concluded that the limitations period for
the employee=s hybrid ? 301/fair representation suit began running when the
employee learned of the arbitrator=s adverse decision. We noted that in a suit
against a union for breach of the duty of fair representation, the limitations period
begins to run Awhen an employee knows or should know of the alleged breach of
duty of fair representation by a union.@ In Schaub=s case, the outside date that
the limitations period could have accrued was in October 2000, when Schaub met
with union representatives who informed him that they would not file a grievance
on his behalf. Schaub filed his complaint in the superior court on July 31, 2002,
more than a year and a half after his union refused to file his grievance. His claim
is therefore barred by the statute of limitations.
IV. CONCLUSION
Because Schaub=s claim is time-barred by the six-month statute of
limitations, we AFFIRM the superior court=s order granting summary judgment to
K&L.
Article 6, section 6.04 of the CBA provides in part:
Except as provided in Section 6.05, there shall be no
suspension or discharge unless the Employer has given
the employee a previous written warning notice wherein
facts forming the grounds of Employer dissatisfaction were
clearly set forth.
Article 34, section 34.03 of the CBA provides in part: AA doctor=s slip
will be required after the third (3rd) consecutive day off.@ This letter of agreement
maintained this policy, stating: AAs stated in the Collective Bargaining Agreement,
no doctor=s slip will be required until the third (3rd) day of illness or injury in the event
an employee elects to not go to a doctor.@
Quoting State v. Beard (Beard III), 960 P.2d 1, 6 (Alaska 1998).
Barry v. Univ. of Alaska, 85 P.3d 1022, 1025 (Alaska 2004) (citations
omitted); see also Alaska R. Civ. P. 56(c).
See, e.g., Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 269 (Alaska
2005).
Marshall v. First Nat=l Bank Alaska, 97 P.3d 830, 835 (Alaska 2004)
(citation omitted).
Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (quoting Int=l Bhd.
of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n.3 (1987) (internal
quotation marks omitted)). Section 301 states in part:
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.
Labor Management Relations Act of 1947 ? 301, 29 U.S.C. ? 185(a) (2000). Section
301 does not apply to public employers. 29 U.S.C. ? 152(2) (2000); see Casey v.
City of Fairbanks, 670 P.2d 1133, 1138 n.7 (Alaska 1983); see also FEDERAL
PROCEDURE, LAWYER=S EDITION ? 52:2206 (John A. Glenn ed., 2001).
See Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 23 (1983) (A[T]he preemptive force of ? 301 is so powerful as to displace
entirely any state cause of action for violation of contracts between an employer and
a labor organization. Any such suit is purely a creature of federal law,
notwithstanding that state law would provide a cause of action in the absence of ?
301.@) (internal quotation marks omitted).
Caterpillar, 482 U.S. at 386-87, 393. Actions arising under ? 301 are
controlled by federal substantive law even though brought in state court. Avco Corp.
v. Aero Lodge No. 735, Int=l Ass=n of Machinists and Aerospace Workers, 390 U.S.
557, 559-60 (1968); Patterson v. State, Dep=t of Agric., 880 P.2d 1038, 1042 (Alaska
1994).
Vaca v. Sipes, 386 U.S. 171, 184 (1967); see also Beard III, 960 P.2d at
5.
Id. at 185.
Id. at 186. The need to prove a union breach as part of a claim against
an employer is why such claims are referred to as Ahybrid claims.@ See discussion
infra Part III.D.1. Our case law involving public employers and employees has
rejected the rule of Vaca v. Sipes, 386 U.S. at 185, and does not require an
employee to show that his union breached its duty to represent him fairly in a
grievance procedure as a condition of suing his employer in court for wrongful
discharge. Casey, 670 P.2d at 1138.
Id. at 185.
Article 8, section 8.02 of Schaub=s collective bargaining agreement
creates a three-step grievance procedure. Section 8.02 states:
Step 1: Employee grievances shall be taken up
immediately between the aggrieved employee and the
Union representative and the immediate supervisor. A
grievance shall be considered untimely if not filed within
ten (10) work days of when the employee had, or
reasonably should have had, notice of the grievance. The
time limits for grievances over terminations are twenty (20)
work days as set forth in Section 6.06. Work days are
defined as Monday through Friday, excluding Saturdays,
Sundays, and holidays.
Step 2: If the grievance is not resolved within five (5) work
days at Step 1, the Union may submit it in writing to a
grievance panel consisting of two Union representatives
and two Employer representatives. The panel must
convene within ten (10) work days of submission of the
grievance at this step.
Step 3: If the grievance is not resolved at Step 2, it may
be taken to arbitration if either the Union or the Employer
so requests.
See Morgan, 107 P.3d at 269.
Vaca, 386 U.S. at 185; see also Beard v. Baum (Beard I), 796 P.2d
1344, 1349 (Alaska 1990).
Id.
Id.; see also Beard III, 960 P.2d at 10 (Rabinowitz, J., concurring).
Id. at 190 (citation omitted). Justice Rabinowitz described the general
standard applicable to union breach cases as follows:
The standard which emerges from this fairly consistent
line of cases is that a union=s decision not to pursue an
employee grievance is reviewed only for an abuse of
discretion. A union=s refusal to grieve constitutes a breach
of duty only when it stems from an improper motive or
lacks a rational basis. As the gatekeeper to arbitration,
the union must be allowed to independently decide which
claims are meritorious and should go forward. Judicial
review is deferential.
Beard III, 960 P.2d at 12 (Rabinowitz, J., concurring).
Id. at 194; see also Kollodge v. State, 757 P.2d 1028, 1034 (Alaska
1988) (noting that Aunions are obligated to expend at least a minimal amount of
investigation and preparation of members= grievances@).
See Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1272 (9th Cir.
1983).
See, e.g., Wilson v. Int=l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747, 753 (6th Cir. 1996)
(affirming summary judgment in favor of defendants because union representative=s
Ahandling of the grievance, while perhaps less than vigorous, was not >hostile= @);
Reed v. Int=l Union of United Auto., Aerospace & Agric. Implement Workers of Am.,
945 F.2d 198, 203 (7th Cir. 1991) (AA union may act upon its reasonable
interpretation of a labor contract; it need not prosecute a grievance that it honestly
believes lacks merit.@); Lowrey v. Exxon Corp., 812 F. Supp. 644, 650 (M.D. La.
1993) (ANeither negligence nor mistake in judgment is enough to support a claim that
the union acted in an arbitrary or perfunctory manner.@). Other courts have
concluded that improper union motivation may not be required where perfunctory
conduct is alleged and proved. See, e.g., Dutrisac, 749 F.2d at 1273 (concluding
that Athe union should be responsible for a total failure to act that is unexplained and
unexcused@); Ethier v. U.S. Postal Serv., 590 F.2d 733, 737 n.3 (8th Cir. 1979).
Tenorio v. NLRB, 680 F.2d 598, 601-02 (9th Cir. 1982) (holding that
union=s handling of grievance was inadequate because union did not attempt to learn
about the circumstances leading to discharge); see also Wilson v. Municipality of
Anchorage, 977 P.2d 713, 719 (Alaska 1999).
Id. at 601 (citations omitted).
Id. at 602.
Article 6, section 6.06 states: AIf no grievance (protest) is filed, in
writing, within ten (10) work days, excluding Saturdays, Sundays, and holidays, of
the delivery of a warning notice or a notice of suspension, the misconduct alleged in
the notice shall be taken as admitted and may not be contested as a fact in any
subsequent grievance or arbitration proceeding. A grievance must be filed within
twenty (20) work days of a notice of termination or the termination shall be
considered final and not subject to the grievance and arbitration provisions of this
Agreement.@
20 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF
CONTRACTS ? 55:20 (4th ed. 2001) (quoting J.E. Faltin Motor Transp., Inc. v. Eazor
Exp., Inc., 172 F. Supp. 175, 178 (W.D. Pa. 1959) (internal quotation marks
omitted)).
NLRB v. Vapor Recovery Sys. Co., 311 F.2d 782, 785 (9th Cir. 1962).
Id.
Id. (quoting 1 CORBIN ON CONTRACTS ? 264 at 878, 879 (1950) (internal
quotation marks omitted)).
Article 6, section 6.03. This section states in part: AA copy of each
warning notice, notice of suspension, or notice of discharge shall immediately be
delivered to the employee and to the shop steward and a copy forwarded to the
Union. The employee will be asked to sign an acknowledgment of receipt of a copy
of the warning, suspension, or discharge.@
The Ashould have had notice@ language in the CBA might be construed
to require something less than actual notice. In light of the language requiring a
signature acknowledging receipt, we conclude that the better interpretation of the
CBA is that the Ashould have had notice@ language is aimed at the situation where an
employee ignores or fails to read a letter that has been received. Cf. NLRB v. Gen.
Teamsters Local No. 439, 837 F.2d 888, 891 (9th Cir. 1988) (observing that the
NLRB does not require that a union have actual knowledge of an employee=s
resignation from the union before the resignation is deemed effective and noting a
case where the NLRB held that Athe failure of the union to pick up the letter until
several days later should not affect the employee=s right to resign@).
462 U.S. 151, 154, 165 (1983).
See AS 09.10.053.
Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 (1966)
(holding that state statute of limitations applied to union=s ? 301 suit against
employer); see also DelCostello, 462 U.S. at 163 (observing the Aobvious and close
analogy@ between the type of suit in Hoosier and an ordinary breach of contract suit).
See Vaca, 386 U.S. at 186; United Parcel Serv., Inc. v. Mitchell, 451
U.S. 56, 62 (1981); see also DelCostello, 462 U.S. at 165; see also discussion supra
Part III.C.
DelCostello, 462 U.S. at 165.
Id.
Montgomery v. Nat=l R.R. Passenger Corp., 619 F. Supp. 1393, 1398
(D. Conn. 1985).
29 U.S.C. ? 160(b) (2000).
DelCostello, 462 U.S. at 154-55; see also Patterson, 880 P.2d at 1042-
43.
Id. at 165.
944 P.2d 468 (Alaska 1997).
Id. at 473.
Cf. Hoosier, 383 U.S. at 705 (holding that state statute of limitations
applied to ? 301 suit where there was no agreement to submit disputes to arbitration
and the union, rather than the employee, brought suit); Carbarga Cruz v. Fundacion
Educativa Ana G. Mendez, Inc., 822 F.2d 188, 191-92 (1st Cir. 1987) (applying state
statute of limitations because there was no evidence that union breached its duty of
fair representation and employee could prevail without proving that union breached
its duty).
Hoosier, 383 U.S. at 705.
Id. at 702.
DelCostello, 462 U.S. at 162; see also Hoosier, 383 U.S. at 699-701.
See Hoosier, 383 U.S. at 696.
Id. at 699.
See id. For additional discussion of the Supreme Court=s reasoning in
Hoosier, see DelCostello, 462 U.S. at 164-65.
DelCostello, 462 U.S. at 163.
Id. at 165, 169.
424 U.S. 554, 571 (1976) (holding that enforcement of arbitration
decisions where arbitrator has erred Ais conditioned upon the union=s having satisfied
its statutory duty fairly to represent the employee in connection with the arbitration
proceedings@).
Vaca, 386 U.S. at 174 .
DelCostello, 462 U.S. at 163.
Hines, 424 U.S. at 557.
Vaca, 386 U.S. at 175.
DelCostello, 462 U.S. at 166 n.16.
See, e.g., Livingstone v. Schnuck Market, Inc., 950 F.2d 579, 582 (8th
Cir. 1991) (applying six-month limitations period to hybrid suit where claimant sued
only his employer); McKee v. Transco Prod., Inc., 874 F.2d 83, 84 (2d Cir. 1989)
(same); Conley v. Int=l Bhd. of Elec. Workers, Local 639, 810 F.2d 913, 915 (9th Cir.
1987) (applying DelCostello to suit where claimant sued only union); Cole v.
Pathmark of Fairlawn, 672 F. Supp. 796, 806 (D. N.J. 1987) (applying DelCostello to
suit against employer only); Mallory v. Ingersoll-Rand Co., 621 F. Supp. 1040, 1043
(W.D. Va. 1985) (same); Montgomery, 619 F. Supp. at 1398 (same).
See, e.g., Allen v. Hennepin County, 680 N.W.2d 560, 564 (Minn. App.
2004) (declining to apply six-month statute of limitations to case brought under
Minnesota=s Public Employment Labor Relations Act); Graham v. Quincy Food Serv.
Employees Ass=n, 555 N.E.2d 543, 612 (Mass. 1990) (declining to apply DelCostello
to suit brought under Massachusetts state law).
See Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986) (noting
that an analysis of the accrual date Amust focus on the context in which the claim
arose@).
Patterson, 880 P.2d at 1043.
Id. at 1043 n.10 (quoting Galindo, 793 F.2d at 1509) (internal quotation
marks omitted).
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