Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 86-00657.
Stapleton and Mansmann, Circuit Judges, and Ackerman, District Judge.*fn*
In this appeal from a grant of summary judgment for the union and an adjudication for the employer, we are faced with the question of whether the district court erred by determining that there existed no question of material fact to support the employee's claim that the union had breached its duty of fair representation pursuant to § 301, or that the company had violated § 510 of the Employee Retirement Income Security Act ("ERISA"), Pub.L. 93-406, 88 Stat. 832 (1974), codified at 29 U.S.C.A. § 1140 (West 1985) by terminating his employment in order to deprive him of a pension. Because we conclude that the district court properly decided that Hendricks had failed to present a prima facie case in the fair representation claim, and that he had failed to meet his burden of persuasion in the ERISA claim, we will affirm the judgments of the district court.
Douglas Hendricks was hired by the Edgewater Steel Company in 1975 and became a member of the United Steelworkers of America International as well as Local 1246. Hendricks moved through different positions in the company as he gained experience and seniority until he reached the level of pendant crane operator ("hooker"). He was injured in an automobile accident in March, 1982 and was placed on disability until March 20, 1984, when the company's physician approved his return to work. Hendricks' disability was treated the same as a lay-off. Consequently, under Section 10 of the Collective Bargaining Agreement, he continued to accrue seniority for two years as well as retaining the seniority for an additional three years. In order to avoid a break in service after an absence of two years, the employee is required to give the company notice in writing that he intends to return to work when called. When Hendricks returned to work after his disability ended in March, 1984, he was notified that there was no work available and he was placed on lay-off status.
On June 1, 1984, the company notified Hendricks by way of a form letter that pursuant to Section 10, subparagraph A(1)(d) he must send, within 30 days of the anniversary date of his lay-off, written notice of his intention to return to work when called. Hendricks noted that the letter had been sent to him two months after his anniversary date of March 26, 1984, and called Russell LaBella, Director of Labor Relations, to determine what he was to do in order to preserve his seniority. LaBella instructed Hendricks to "follow the letter". Hendricks complained that the company had failed to include an addendum to the notification which would have explained the delay and assured Hendricks that he had a month within which to respond to the notification. Uncertain as to what he was to do, Hendricks did not respond to the June 1, 1984 letter. When the anniversary of his lay-off date arrived in 1985, Hendricks knew he was to send a letter, pursuant to the requirements of A(1)(d), notifying the company of his intention to return to work when called. He wrote the letter April 11, 1985.
Hendricks stated that he would occasionally stop by the plant to observe the work schedules to see if he had been recalled to work. In September, 1985, when it became apparent that less senior employees were called to work, Hendricks called LaBella and was informed that he, Hendricks, had been terminated from employment in 1984 for failing to send the requisite notice. Hendricks alleges that neither he nor the union received notice of the termination. After learning of his termination, Hendricks promptly called William Cassol, Vice-President of Local 1246 and Chairman of the Grievance Committee, to notify Cassol of this wrongful termination. Hendricks did not, however, file a formal written grievance as required by the collective bargaining agreement. Cassol met with LaBella and discussed Hendricks' situation. LaBella explained that Hendricks had been terminated because he had failed to send timely notice of his intent to return to work when called. Cassol explained that Hendricks denied receiving the addendum. LaBella assured Cassol that, although the company had made some mistakes in sending out the notices late, he was certain that the addendum had been included.
After meeting with LaBella, Cassol discussed Hendricks' case with Steelworkers' staff representative Jack McGrogan. They determined that if the union went through the grievance procedure to arbitration they would lose. Thus, Cassol notified Hendricks of the outcome of his investigation and discussions with LaBella and McGrogan. When Hendricks inquired as to what else could be done, Cassol ostensibly replied, "Forget about it."
Hendricks brought suit in the District Court for the Western District of Pennsylvania alleging that the company had violated § 510 of ERISA, 29 U.S.C. § 1140, and that the union had breached its duty of fair representation as required by § 301, 29 U.S.C.A. § 185 (West 1978). The district court granted summary judgment for the union and the company on Hendricks § 301 claim but denied the company's motion for summary judgment on the § 510 ERISA claim. The district court concluded that Hendricks had failed to follow the mandatory grievance procedures outlined in the collective bargaining agreement, and therefore, was barred from bringing suit. The § 510 claim proceeded to a non-jury trial and the district court entered an adjudication on May 8, 1989 entering judgment for the company in Hendricks' § 510 claim. Ten days later, Hendricks filed a Rule 52 motion to amend, modify or add to the May 8 decision. The district court denied this motion on June 14, 1989. Hendricks timely filed his notice of appeal from the denial of the Rule 52 motion, the May 8 adjudication and the order granting summary judgment.
Our review of the district court's order granting summary judgment is plenary since it involves a determination of whether, as a matter of law, the non-moving party has failed to present a genuine issue "of material fact, and if not, whether the moving party is entitled to judgment as a matter of law." Little v. MGIC Indemnity Corporation, 836 F.2d 789, 792 (3d Cir. 1987). We have plenary review of the district court's conclusions of law in the ERISA case; as to the district court's findings of fact in the resolution of the case against the company, we can reverse only if we conclude that the determination was clearly erroneous. See Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175 (3d Cir. 1985), cert. denied, 475 U.S. 1035, 89 L. Ed. 2d 353, 106 S. Ct. 1244 (1986).
Hendricks contends that the district court erred by granting summary judgment to the union and the company on the breach of fair representation claim because he falls into one of the exceptions to the requirement of exhaustion of union remedies.*fn1 While it is well settled law that in order to bring a successful suit alleging breach of a labor contract, an employee must exhaust the procedures in the collective bargaining agreement when that agreement governs the manner in which an employee's rights are to be enforced, Griesmann v. Chemical Leaman Tank Lines, Inc., 776 F.2d 66 (3d Cir. 1985), the employee may be excused from this requirement where resorting to the grievance procedure would be futile, where the employer repudiated the collective bargaining agreement, or where the union breached its duty of fair representation, i.e., arbitrarily refusing or perfunctorily handling the grievance. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967). See also Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 1972) ("when resort to arbitration would be futile, the employees need not exhaust the arbitration procedures before seeking relief in the courts.") The right to bring suit against the union for breach of fair representation was a judicially created right to avoid unions being conferred ...