him. Bellesfield Br. at 11. This duty would be a purely ministerial act on the Union's part, and would require of the Union no exercise of its judgment or discretion. Thus, says plaintiff, a court should not be reluctant to impose this duty on the Union. Id. at 11-12.
I find it difficult to believe that an assurance by the Union -- an organization with which plaintiff felt at odds -- that it would perform its legal duty to fairly represent plaintiff, without an assurance that the Union would take the claim through the grievance and arbitration process, could result in the renewed trust in the Union envisioned in plaintiff's affidavit. In any event, even if the Union would be better advised to so assure those employees with strained Union relations, I cannot find that the Union's failure to do so, given the processing of plaintiff's claim though the first grievance meeting of January 1987, supports a finding of bad faith on the part of the Union. Affirmative evidence of bad faith would be required before a rational factfinder could reach that conclusion, and it is precisely such evidence which is absent in this case.
Finally, plaintiff asserts that discovery, which has been closed since August 1987, should be re-opened in order to permit him to adequately respond to the summary judgment motions now before me.
In particular, he claims that discovery is needed as to the Union's regular procedure in processing grievance and arbitration matters, and that his former counsel failed to pursue such information prior to the close of discovery. Plaintiff asserts that the Union's reply brief for the summary judgment motion contained the first mention that plaintiff's case was deficient because plaintiff failed to point out any differences between the procedures in Bellesfield's grievance and those in any other grievance. Affidavit of David Tykulsker, 10-29-87, paras. 8-9.
Bellesfield's Rule 56(f) claim fails on three grounds. First, plaintiff asserted this precise claim before Magistrate G. Donald Haneke on September 14, 1987, and the Magistrate denied Bellesfield's request to re-open discovery in an order dated September 21, 1987. Plaintiff could have appealed that order within ten days, pursuant to Local Rule 40(D)(4)(a) ("Any party may appeal from a magistrate's determination of a non-dispositive matter within 10 days . . ."). Thus, plaintiff had an opportunity to timely present to this Court his asserted need for the additional discovery, and he failed to do so. Rule 56(f) should not be used as an alternative to timely appeals from magistrates' orders.
Second, the Union's claim that Bellesfield has not proven differential treatment was raised only in partial response to Bellesfield's argument, first asserted in his opposition papers, that the Union was under a ministerial duty to inform all employees of its intention to fairly represent them. Union Reply Br. at 9 n.4, 10. Plaintiff will not be heard to complain that a new wrinkle was added to this case by the Union when that addition occurred only because of his assertion of a new theory of recovery, the evidence in support of which he has not yet found. Finally, as noted above, case law in this Circuit has pointed to the importance of differential treatment as proof of bad faith on a union's part. See King, supra. Thus, plaintiff should have been on notice that at some point evidence of differential treatment by the Union would be required of him, and he should have sought that evidence prior to the week before the return date of a summary judgment motion. In any event, the laundry list of discovery sought by plaintiff, with no basis in fact offered for believing that he received differential treatment, is simply an attempt to forestall the inevitable.
Defendants' motions for summary judgment are granted. An appropriate order will issue.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 675 F. Supp.]
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT.
This matter having been opened to the court by Cohen, Weiss and Simon, attorneys for defendant Local 10, A.C.A., I.B.T., upon the Motion of Defendant Local 10 for the entry of summary judgment dismissing the plaintiff's complaint against it; and the Court having reviewed the submissions in support thereof and in opposition thereto; and good cause having been shown;
IT IS on this 23rd day of November, 1987;
ORDERED that the motion of defendant Local 10 is hereby granted and summary judgment is hereby entered in favor of defendant Local 10 dismissing the complaint of plaintiff against it. No costs.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This matter having been opened to the Court by Pitney, Hardin, Kipp & Szuch, attorneys for defendant RCA American Communications, Inc., upon the motion of defendant RCA for the entry of summary judgment dismissing the plaintiff's complaint against it; and the Court having reviewed the submissions in support thereof and in opposition thereto; and good cause having been shown;
IT IS on this 23rd day of November, 1987;
ORDERED that the motion of defendant RCA American Communications, Inc., is hereby granted and summary judgment is hereby entered in favor of defendant RCA dismissing the complaint of plaintiff against it?