On appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-2076.
Gibbons, Chief Judge, Seitz, Circuit Judge, and Pollak, District Judge*fn*
Philip Ames, a former employee of Westinghouse Electric Corporation, appeals from a judgment dismissing as moot his hybrid action against Westinghouse and the International Union of Electrical Radio & Machine Workers, AFL-CIO, Local 617 and I.U.E. Westinghouse Conference Board (collectively, the Union). The action charges that Westinghouse breached the collective bargaining agreement applicable to employees at the Westinghouse plant in Sharon, Pennsylvania, and that the Union breached its duty of fair representation by not pursuing a contract grievance arbitration remedy on Ames' behalf. While the action was pending, Westinghouse filed a motion to dismiss supported by a showing that it and the Union had agreed to arbitrate Ames' grievance and that the Sharon plant was not permanently closed. The district court adopted the recommendation of a United States magistrate that these facts rendered Ames' lawsuit moot. Since the court relied on matters outside the pleadings, its ruling is properly regarded as a Fed. R. Civ. P. 56 summary judgment. De Tore v. Local 245, Jersey City Pub. Employees Union, 615 F.2d 980, 983 (3d Cir. 1980). Thus our review is plenary. Goodman v. Mead Johnson & Co., 534 F.2d 566, 577 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). We will affirm the dismissal of the action against Westinghouse, but reverse the dismissal against the Union, and remand for further proceedings.
From the materials in the summary judgment record a factfinder could find that Ames had been employed by Westinghouse at the Sharon plant for twenty-three years when, on November 15, 1983, he received notice that he would be laid off at year's end. During his entire employment, Ames' collective bargaining representative was the Union, which had a collective bargaining agreement with Westinghouse. That agreement contains a typical grievance arbitration clause. When, in the fall of 1983, impending layoffs were announced, Ames placed a bid for a job as a screw machine operator, then held by a member of the bargaining unit, Robert Jones. Jones had four months less seniority than Ames. Under the terms of the collective bargaining agreement, if Ames was designated by a supervisor as qualified for a job, his seniority afforded him the right of first refusal for it in preference over an employee with less seniority.
Ames was discouraged by the Westinghouse Personnel Department from pursuing his bid for Jones' screw machine job because the job was going to be eliminated in a couple of weeks. He was told by the Union president not to bother because Jones was a friend of the supervisor who would have to pass on Ames' qualifications, and thus Jones would be protected. Ames was laid off at the end of 1983.
Over a year later Ames heard a rumor that Jones had continued to work at the Sharon plant until that plant permanently closed. Ames asked a Union steward to inquire if this was so and, in March of 1985, received a letter confirming that Jones had indeed continued to work as a screw machine operator. He asked the Union steward to investigate on his behalf, and thereafter spoke with various Union officials who assured him they would follow up. While Ames never explicitly requested that the Union file a grievance, he thought that such a request was implicit in his demand for Union assistance.
His efforts to have the Union act on his behalf were unavailing and, on September 9, 1985, Ames filed a complaint under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) (1982), and section 102 of the Labor Relations Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412 (1982). The complaint alleges that, by continuing to employ Jones after laying off Ames, Westinghouse violated the collective bargaining agreement, and that by failing to pursue Ames' grievance over the violation of the contract the Union breached its duty of fair representation. The complaint seeks damages in the amount of lost wages and benefits, attorneys fees, and punitive damages.
After fairly extensive discovery, Westinghouse and the Union agreed to arbitrate Ames' grievance. When the district court was so advised, it requested a report and recommendation on Westinghouse's motion to dismiss the case as moot. The magistrate pointed out, and Ames does not dispute, that since the Sharon plant is permanently closed the grievance cannot recur. The magistrate also pointed out that in the arbitration Ames can be made whole for any breach of the collective bargaining agreement. Thus, the magistrate reasoned, the entire case was moot. The district court adopted the report and recommendation of the magistrate and dismissed the complaint. This appeal followed.
An action becomes moot when "(1) there is no reasonable expectation that the alleged events will recur . . . and (2) interim relief or events have completely eradicated the effects of the violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1935) (citations omitted). Ames does not dispute that the permanent closing of the Sharon plant makes future violations impossible. He does dispute, however, the district court's holding that the arbitration of his claim will irrevocably eradicate the ...