PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Neville Carrington originally filed this action in
the Superior Court of New Jersey, Law Division, for Middlesex
County, on January 28, 1991. In his complaint, the allegations
of which are taken as true for purposes of the present motion,
plaintiff alleges that prior to September 15, 1988, he was
employed as a computer technician by defendant RCA Global
Communications, Inc. ("RCA"). Complaint, Count I, ¶ 2.
Plaintiff further alleges that defendant International
Brotherhood of Teamsters, Local Union 111 ("IBT"), is the
successor union of the American Communications Association,
Local 10, which acted as the collective bargaining agent for
certain employees of RCA, including plaintiff. Id., ¶ 4. At all
times relevant to the complaint, plaintiff alleges, a
collective bargaining agreement was in effect between defendant
RCA and defendant IBT. Id., ¶ 15.
According to the complaint, on September 7, 1988, while
plaintiff was working at an RCA facility in Piscataway, New
Jersey, a fellow employee of RCA, without provocation,
physically assaulted plaintiff. Id., ¶ 9. Subsequently, and
apparently in relation to this incident, on September 14, 1988
defendant Christopher McLaughlin, an agent of defendant IBT,
informed plaintiff that he would be discharged from employment
effective September 15, 1988. Id., ¶ 12. The next day,
plaintiff received a "notice of layoff" from defendant Nicholas
Bafitis, manager of labor relations for defendant RCA,
informing plaintiff that he was being discharged as of that
day. Id., ¶ 13.
Based on the foregoing allegations, plaintiff asserts three
causes of action. First, plaintiff alleges that under the
collective bargaining agreement between RCA and IBT, as well as
under RCA's independent company policy (possibly as embodied in
a personnel manual), RCA employees such as plaintiff could be
discharged only for cause. Id., ¶¶ 16-17, 21. Furthermore,
plaintiff alleges, under the collective bargaining agreement
RCA must give ten (10) days notice before discharging an
employee, and the agreement also contained certain grievance
and appeal procedures for discharged union members, of which
plaintiff was never advised. Id., ¶¶ 18, 20. Finally, plaintiff
alleges that the collective bargaining agreement also includes
certain implied covenants of good faith and fair dealing. Id.,
¶ 19. Therefore, plaintiff claims that his discharge was in
violation of both the collective bargaining agreement and RCA
company policy. Id., ¶ 21. Plaintiff thus brings a cause of
action against individual defendants Bafitis, John Bacardi and
Arthur Friedland, each of whom is allegedly an agent or
employee of RCA, for knowingly inducing RCA to breach the
collective bargaining agreement and company policy by
discharging plaintiff. Id., ¶ 23.
Count II of the complaint states a claim for discrimination
against defendant RCA as well as individual RCA employees
Bafitis, Bacardi and Friedland. Plaintiff alleges that he is
black, Complaint, Count II, ¶ 4, and that the defendants
discriminated against him on the basis of race by discharging
him, in violation of the New Jersey Law Against Discrimination
("NJLAD"), N.J.S.A. 10:5-12a. Id., ¶ 7.
Finally, Count III of the complaint also states a claim of
discrimination, this time against defendant IBT and individual
defendants Christopher McLaughlin and John Kinney, who are
allegedly agents or employees of the union. Plaintiff alleges
that these defendants discriminated against him on the basis of
race by failing to advocate plaintiff's position with RCA
management, failing to advise plaintiff of his grievance and
appeal rights under the collective bargaining agreement, and
otherwise taking a passive role in connection with plaintiff's
discharge, again in violation of the NJLAD, N.J.S.A. 10:5-12b.
Complaint, Count III, ¶¶ 3, 5.
Defendants RCA, Bafitis, Bacardi and Friedland originally
filed a notice of removal on March 18, 1991, allegedly within
one month of receipt of plaintiff's complaint.*fn1
Defendants argued that this case is within this Court's subject
matter jurisdiction, and therefore removable, because
plaintiff's claim that he was wrongfully discharged in
violation of the collective bargaining agreement states a claim
which is preempted by Section 301 of the Labor Management
Relations Act ("LMRA"), 29 U.S.C. § 185, and therefore falls
within this Court's "arising under" jurisdiction under
28 U.S.C. § 1331.
The case having been removed, both the employer and union
defendants have filed separate motions to dismiss, on the
following grounds: (1) plaintiff's claim for wrongful discharge
is a "hybrid" claim under the LMRA and is therefore governed by
a six month statute of limitations; because plaintiff's
complaint was filed over two years after he was discharged,
defendants argue, the wrongful discharge claim is barred by the
statute of limitations; (2) RCA and, apparently, the union,
argue that the discrimination claims against them are also
preempted under the LMRA and subject to a six month statute of
limitations, and therefore should also be dismissed as time
barred; (3) alternatively, RCA and the union argue that even if
plaintiff's state law discrimination claims are not preempted
by the LMRA, the applicable statute of limitations under the
NJLAD is two years, and therefore plaintiff's claims are still
time barred; and (4) all of the individual defendants argue
that the complaint against them should be dismissed in any
event because they have not been properly served.
At the outset, I agree that this case is properly before the
Court under federal "arising under" jurisdiction. As defendant
RCA argues, and as plaintiff concedes, a claim for wrongful
discharge based on the terms of a collective bargaining
agreement, such as plaintiff asserts in Count I of his
complaint, is completely preempted by the LMRA. See Krashna v.
Oliver Realty, Inc., 895 F.2d 111, 115 (3d Cir. 1990).
Ordinarily, of course, under the well-pleaded complaint rule,
where a plaintiff's complaint on its face states only state law
causes of action, the fact that issues of federal law may be
involved, as in the nature of a defense, will not suffice to
create federal question jurisdiction. See Franchise Tax Board
v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103
S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983); Taylor v. Anderson,
234 U.S. 74, 75-76, 34 S.Ct. 724, 725, 58 L.Ed. 1218 (1914);
see also Skelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 672, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). This is true
even though federal law may preempt state law, for the issue of
federal preemption is still only raised as a defense, and
therefore cannot create federal question jurisdiction under the
well-pleaded complaint rule. Franchise Tax Board, 463 U.S. at
25-27, 103 S.Ct. at 2854-55.
However, an exception to this application of the well-pleaded
complaint rule "is that Congress may so completely preempt a
particular area, that any civil complaint raising this select
group of claims is necessarily federal in character. For 20
years, this Court has singled out claims pre-empted by § 301 of
LMRA for such special treatment." Metropolitan Life Insurance
Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95
L.Ed.2d 55 (1987). This is because "§ 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
the fact that state law would provide a cause of action in the
absence of § 301." Franchise Tax Board, 463 U.S. at 23, 103
S.Ct. at 2853-54. Therefore, because the Third Circuit has
held, and plaintiff concedes, that a claim for wrongful
discharge such as plaintiff's is completely preempted by § 301
of the LMRA, see Krashna v. Oliver Realty, Inc., 895 F.2d at
115, under the complete preemption doctrine plaintiff's claim
is one "arising under" federal law and therefore within this
Court's subject matter jurisdiction.
Even if plaintiff's other claims arise only under state law,
they may still be heard under this Court's pendent
II. PLAINTIFF'S WRONGFUL DISCHARGE CLAIM.
Defendant RCA argues that plaintiff's wrongful discharge
claim is a "hybrid" claim preempted by the LMRA, to which a six
month statute of limitations applies. Because, RCA argues,
plaintiff brought his claim over two years after his discharge,
it should be dismissed as barred by the statute of limitations.
Plaintiff concedes that his wrongful discharge claim is
preempted by the LMRA, but argues (1) that his claim is not a
"hybrid" claim, and therefore the six month statute of
limitations does not apply, and (2) even if his claim is a
"hybrid" claim, the complaint was timely filed.
Ordinarily, an employee who brings a claim, such as
plaintiff's wrongful discharge claim, against an employer for
breach of a collective bargaining agreement is first required
to exhaust any grievance or arbitration remedies provided in
the collective bargaining agreement. DelCostello v. Int'l
Brotherhood of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281,
2289, 76 L.Ed.2d 476 (1983). However, an employee is not
required to exhaust his remedies under the grievance procedures
if the union breaches its duty of fair representation in
connection with the grievance process (as, for example, where
the union fails to process the employee's claim). Id. at 164,
103 S.Ct. at 2290. In such a case, the employee may bring a
so-called "hybrid" action against both the employer, for breach
of the collective bargaining agreement, and the union, for
breach of the duty of fair representation. Id. For such a
"hybrid" claim, the Supreme Court has held, the applicable
statute of limitations is six months, as provided under § 10(b)
of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at
169, 103 S.Ct. at 2293.
Plaintiff argues, however, that his wrongful discharge claim
is not a "hybrid" claim because he does not actually assert a
claim for breach of duty of fair representation against the
union. This argument is without merit. Although plaintiff does
not assert a claim for breach of duty of fair representation
against the union, the allegations in his complaint are
precisely that the union breached its duty to plaintiff by
failing to advise him of his rights under the collective
bargaining agreement. See Complaint, Count I, ¶ 20. As the
Supreme Court has held, the two claims in a "hybrid" action are
"inextricably interdependent." DelCostello, 462 U.S. at 164,
103 S.Ct. at 2291. Without a claim against the union, the
employee's claim against the employer would be barred by the
exhaustion requirement. Findley v. Jones Motor Freight,
639 F.2d 953, 957-58 (3d Cir. 1981).
"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." . . .
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.
DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291 (quoting United
Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct.
1559, 1566, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring in
the judgment)). See also Chauffeurs, Teamsters & Helpers v.
Terry, 494 U.S. 558, ___, 110 S.Ct. 1339, 1344, 108 L.Ed.2d
519, 527 (1990). "The law is clear that regardless of who is
named as a defendant, a hybrid claim is presented if an
employee has a cause of action against both the employer and
the union, where the two claims are inextricably linked, and
where the case to be proved is the same against both." McKee v.
Transco Products, Inc., 874 F.2d 83, 86 (2d Cir. 1989).
Therefore, "even though plaintiff did not name the union as a
defendant," in fact "a hybrid claim implicitly exists." Cole v.
Pathmark of Fairlawn, 672 F. Supp. 796, 806 (D.N.J. 1987).
Consequently, plaintiff "cannot circumvent the six-month
limitations period for hybrid actions by choosing to sue only
[his] employer." McKee, 874 F.2d at 86. See also Bailey v.
& Ohio Ry. Co., 852 F.2d 185, 187 (6th Cir. 1988).
In the alternative, however, plaintiff argues that the
wrongful discharge claim is not a "hybrid" claim because here
the employer has repudiated its obligations under the
collective bargaining agreement, citing Garcia v. Eidal Int'l
Corp., 808 F.2d 717 (10th Cir. 1986), cert. denied,
484 U.S. 827, 108 S.Ct. 94, 98 L.Ed.2d 55 (1987). See also Smith v.
Pittsburgh Gage & Supply Co., 464 F.2d 870, 875 (3d Cir. 1972).
Once again, however, plaintiff's argument is misplaced. In
Garcia the court held that the action against the employer
differed from a typical "hybrid" action "[i]n one crucial
respect," namely, that the employer "repudiated the grievance
and arbitration process as part of its unilateral effort to
evade an undesirable bargaining agreement." Garcia, 808 F.2d at
721. In such a case, proof of the breach of contract claim
against the employer "in no way depends upon proof concerning
`the nature of the union's discharge of its duty of
representation.'" Id. In other words, where an employer has
completely repudiated its obligations under the contract's
grievance procedures, this alone suffices to explain the
employee's failure to exhaust his remedies under those
procedures, without any reference to a breach of the duty of
fair representation by the union.
However, to take a claim out of the "hybrid" category the
employer must actually repudiate the contract's grievance
procedures. "An employer's repudiation may take the form of
either an express refusal to abide by contractually established
grievance and arbitration machinery, . . . or conduct which
renders the employer unable or apparently unable to comply."
Garcia, 808 F.2d at 721-22. Plaintiff's complaint, however,
alleges neither that RCA or its agents expressly refused to
abide by the grievance procedures, nor that RCA took any action
rendering it incapable of complying. In fact, plaintiff's only
allegation in this respect is that the union failed to inform
him of the grievance process, and therefore he never attempted
to exercise his rights under that process. See Complaint, Count
I, ¶ 20. There is no suggestion in the complaint that RCA was
under any obligation to initiate the grievance process, and in
fact the plain terms of the collective bargaining agreement
suggest quite the opposite. See Agreement Between RCA Global
Communications, Inc. and American Communications Association,
Local Union 10, § 33(c) ("There is no responsibility on the
Company to make an adjustment of any grievance unless it is
presented within thirty (30) calendar days after the occurrence
of the acts or omissions of the Company which are the basis of
the grievance . . ."). Here "all the Company did was fire
[plaintiff]; it took no steps that would have precluded him
from grieving his dismissal." D'Amato v. Wisconsin Gas Co.,
760 F.2d 1474, 1488 (7th Cir. 1985); see also Redmond v. Dresser
Industries, Inc., 734 F.2d 633, 636 (11th Cir. 1984).
Therefore, I reject plaintiff's argument that RCA repudiated
the collective bargaining agreement's grievance procedure.
Finally, plaintiff argues that even if his wrongful discharge
claim is a "hybrid" claim subject to the six month statute of
limitations under DelCostello, on the facts of this case the
complaint was filed within the six-month period. Specifically,
plaintiff contends that he did not discover the existence of a
violation of the collective bargaining agreement until August
1990, when he first consulted with a lawyer regarding his
discharge. This is so, plaintiff argues, because he lacked
knowledge of the terms and procedures of the collective
bargaining agreement, the defendants failed to inform him
regarding his rights under the agreement, and the
characterization of the discharge as a "layoff" somehow
prevented plaintiff from discovering the existence of any legal
remedies for the discharge. Therefore, plaintiff argues, his
claim was timely filed within six months after the statute of
limitations began to run.
Once again, I find plaintiff's argument without merit. Courts
generally apply a discovery rule to the statute of limitations
for a "hybrid" claim which provides that the period begins to
run at the point when a plaintiff knew or, through reasonable
diligence, should have known that he or she possessed a cause
of action. Balsavage v. Ryder Truck Rental, Inc., 712 F. Supp. 461,
468 (D.N.J. 1989). Specifically, the clock begins to run
when the plaintiff knew or should have known of the acts
constituting the union's wrongdoing. Arriaga-Zayas v. Int'l
Ladies' Garment Workers' Union, 835 F.2d 11, 13 (1st Cir.
1987), cert. denied, 486 U.S. 1033, 108 S.Ct. 2016, 100 L.Ed.2d
604 (1988). This has variously been described as occurring when
the employee "discovers, or in the exercise of reasonable
diligence should have discovered, the acts constituting the
alleged violation," Hersh v. Allen Products Co., 789 F.2d 230,
232 (3d Cir. 1986), or when the "futility" of relying on union
assistance "became apparent or should have become apparent" to
the employee. Scott v. Int'l Brotherhood of Teamsters,
725 F.2d 226, 229 (3d Cir. 1984). See also Lewis v. Int'l Brotherhood of
Teamsters, 826 F.2d 1310, 1318 (3d Cir. 1987).
In either case, it is plain that plaintiff's "discovery" of
the violation was triggered well before six months prior to the
filing of the complaint. The union's conduct which constitutes
the alleged violation was the failure to assist plaintiff with
filing a grievance or otherwise advocate for plaintiff's
position in connection with the termination. This failure
should have been discoverable almost immediately upon
plaintiff's termination. Likewise, if one views the period as
beginning when it became apparent that relying on the union for
assistance was futile, again this should have occurred shortly
after plaintiff was discharged, when the union in fact failed
to provide plaintiff with any help. Under the plain terms of
the collective bargaining agreement, a grievance must be
presented to the employer within 30 days of the acts which form
the basis of the grievance. See Agreement, § 33(c). Therefore,
it should have been clear to plaintiff within a month of his
discharge that the union had failed to assist him in filing a
timely grievance. "At some point prior to the six month
statutory period, the [plaintiff] should have realized that the
Union was taking no action on [his] behalf. The [plaintiff]
cannot be allowed to sit back and claim a lack of notice in
light of circumstances such as these." Metz v. Tootsie Roll
Industries, Inc., 715 F.2d 299, 304 (7th Cir. 1983), cert.
denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984).
Plaintiff's only argument for tolling the statute of
limitations is that he was unfamiliar with the provisions of
the collective bargaining agreement until August 1990. However,
the discovery rule for "hybrid" claims imposes a duty to
exercise due diligence, see Hersh, 789 F.2d at 232, which
"means familiarity with the collective bargaining agreement,
and the making of such inquiries as would be reasonably
calculated to acquire the pertinent information concerning the
union's breach." Balsavage, 712 F. Supp. at 473. See also Demars
v. General Dynamics Corp., 779 F.2d 95, 99 (1st Cir. 1985).
Plaintiff does not suggest that he made any inquiries regarding
his rights under the agreement; nor is this a case where the
plaintiff claims that he was mislead by the union. Compare King
v. New York Telephone, Inc., 785 F.2d 31, 34-35 (2d Cir. 1986).
Plaintiff's ignorance of the terms of the collective bargaining
agreement, without more, provides no basis for tolling the
statute of limitations. See also Illis v. United Steelworkers
of America, 615 F. Supp. 1081, 1085 n. 3 (D.V.I. 1985)
(employee "had a duty to familiarize himself with terms of the
collective bargaining agreement including the
grievance/arbitration provisions, and is charged with knowledge
thereof"); Hull v. Local 414 of the Int'l Brotherhood of
Teamsters, 601 F. Supp. 869, 873 (N.D.Ind. 1985) (same).
Consequently, because plaintiff's wrongful discharge claim is
a "hybrid" claim governed by a six month statute of
limitations, and because that period began to run well before
six months prior to the filing of the complaint, I conclude
that plaintiff's claim is time barred.
III. PLAINTIFF'S DISCRIMINATION CLAIMS.
Defendants first argue that plaintiff's discrimination claims
under the New