§ 185; Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 7 L. Ed. 2d 593, 82 S. Ct. 571 (1962). Moreover, "when the resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, the claim must either be treated as a § 301 claim . . . or dismissed as pre-empted by federal labor-contract law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).
Resolution of the state law claims in Counts Three and Four requires the Court to interpret the CBA. To determine whether Bell Atlantic breached its duty of good faith and fair dealing by terminating Pagano from his employment, the Court must inquire whether there was "just cause" to terminate him under the Agreement. In addition, any decision regarding whether the company's internal disciplinary policy was an implicit provision of the CBA would also obviously entail an analysis of the scope and content of the Agreement. To allow Pagano to bring these claims as state law actions would not comport with the Supreme Court's explicit directive to resolve disputes concerning collective bargaining agreements under federal labor law instead of under state law. See Lucas Flour Co., 369 U.S. at 103. Because § 301 preempts Counts Three and Four, these counts must be dismissed.
III. WHETHER PAGANO SHOULD BE GRANTED LEAVE TO AMEND HIS COMPLAINT
Fed. R. Civ. P. 15 governs the amendment of pleadings. Rule 15(a) provides that once a response to a party's pleading is served, that pleading may be amended only by leave of court or by written consent of the adverse party. The rule further provides that leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). A general presumption exists in favor of allowing a party to amend its pleadings. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.), cert. denied, 469 U.S. 871, 83 L. Ed. 2d 150, 105 S. Ct. 221 (1984). Leave to amend a complaint should be granted freely in the absence of undue delay or bad faith on the part of the movant as long as the amendment would not be futile and the opposing party would not suffer undue prejudice. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 1984), cert. denied, 469 U.S. 1122, 83 L. Ed. 2d 799, 105 S. Ct. 806 (1985). "Amendment of the complaint is futile if the amendment will not cure the deficiency in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
Pagano's proposed Amended Complaint differs from the original Complaint in two respects. First, it alleges that the plaintiff did not learn of the nature and extent of the Union's perfunctory processing of his grievance until April 8 when he received certain documents from the Union. See Amended Compl. P 20. As expressed above, the Court has found that this belated revelation does not toll the statute of limitations for plaintiff's DFR claim that the Union improperly handled his grievance. Consequently, paragraph 20 of the Amended Complaint is futile because it does not cure the timeliness defect of the original claim.
Pagano also asserts in his Amended Complaint a newly discovered basis for his claim that the Union breached its duty of fair representation. He alleges that during negotiations, Bell Atlantic offered Pagano, through the Union, a clerical position to attempt to settle the dispute. See id. P 16. Pagano claims that the Union failed to communicate to him this offer of employment. See id. PP 16, 23. It is plaintiff's contention that he first learned of this settlement offer in September 1997 while conducting investigation related to this action. See id. P 16.
The Court finds that this new allegation by plaintiff that the Union breached its duty of fair representation through its failure to convey Bell Atlantic's job offer forms an independent basis for a cognizable DFR claim. A union's failure to convey a settlement offer presented by an employer during negotiations may alone constitute a breach of its duty of fair representation if it is established that this conduct was arbitrary, discriminatory, or in bad faith. See Jenkins v. Nettles, 1997 U.S. App. LEXIS 22651, 1997 WL 499932, at *2 (4th Cir. Aug. 25, 1997) (per curiam) (court grants summary judgment to union but acknowledges that union president's failure to inform plaintiff employee of the company's offer to return him to his job could form the basis for a cognizable DFR claim if evidence showed that this nondisclosure was arbitrary and in bad faith); Perry v. Chrysler Corp., 1978 U.S. Dist. LEXIS 19289, 1978 WL 1633, at *7 (E.D. Mich. Mar. 1, 1978) (recognizing "the Union's responsibility to inform grievants of settlement offers"). Pagano does allege that the Union's nondisclosure was arbitrary, capricious, and in bad faith. See Amended Compl. P 23. This charge may be considered separate from plaintiff's claim that Local 827 failed to diligently pursue his grievance even though both allegations are plead in the same DFR claim (First Count) in the Amended Complaint.
Under the well accepted discovery rule, a DFR claim based on the Union's failure to inform Pagano of this job offer would not have accrued until Pagano was aware, or reasonably should have been aware, of the Union's nondisclosure. See Oshiver, 38 F.3d at 1386. This is analogous to claims of fraud where the "knew or should have known" tolling principle applies. Pagano claims that he did not become aware of the Union's failure to convey the job offer until September 1997. If this is true and Pagano shows that he could not have reasonably known of the Union's omission before this date, his DFR claim would not be barred by the statute of limitations. The Court also notes that Pagano's charge that the Union breached its duty by failing to communicate the job offer is not a "hybrid" action and thus would probably not be governed by the six-month limitations period in any event. Thus, the Court will grant plaintiff leave to file an Amended Complaint which asserts a DFR claim based solely on the Union's alleged failure to convey Bell Atlantic's job offer.
For the foregoing reasons, the Court dismisses all counts of plaintiff's original Complaint on the grounds of untimeliness and preemption but grants the plaintiff leave to file an Amended Complaint alleging that Local 827 breached its duty of fair representation through its failure to convey to him a job offer presented by Bell Atlantic during negotiations.
William H. Walls, U.S.D.J.
19 December 1997