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Thomas-Still v. Training School at Vineland


December 20, 2001


The opinion of the court was delivered by: Simandle, District Judge


This matter is before the Court on defendant's motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P., and alternatively to dismiss for failure to name an indispensable party (her union) pursuant to Rule 12(b)(7), Fed. R. Civ. P. Defendant, The Training School at Vineland, asserts that plaintiff's Complaint, which seeks to enforce a favorable arbitration award rendered pursuant to the collective bargaining agreement between defendant and plaintiff's union, United Automobile Workers Local Union No. 2327 ("UAW Local 2327"), is untimely because the statute of limitations has run and, alternatively, that the Complaint must be dismissed because plaintiff failed to name UAW Local 2327, which defendant asserts is an indispensable party as defined in Rule 19(a), Fed. R. Civ. P. Defendant argues as a further alternative that this lawsuit is premature because there is insufficient evidence that the union has triggered a cause of action by refusing to pursue plaintiff's contractual remedy of enforcing the arbitration award on plaintiff's behalf. Plaintiff denies that the complaint is untimely or premature and avers that although UAW Local 2327 could have been named as a defendant, it is not an indispensable party. The Court must determine what the applicable statute of limitations period is in this case, whether and when the cause of action accrued and started the period running, and whether UAW Local 2327 is a necessary party.

The Court convened an evidentiary hearing on the statute of limitations issue, conducted on December 6 and 14, 2001. The Court received documentary exhibits into evidence from plaintiff *fn1 and from defendant. *fn2 Testimony was received from plaintiff Thomas-Still and from Francis Smith (Area Director, United Auto Workers) and from Jane Detweiller (Executive Director of the Training School at Vineland). The Court makes the following findings of fact and conclusions of law resolving the statute of limitations issue.


In September 1995, plaintiff, Cecilia Thomas-Still ("Thomas-Still"), began her employment as a group home counselor with defendant The Training School at Vineland ("Training School"). The Training School is a for-profit organization in the business of providing care, training and assisted living to emotionally and mentally challenged individuals. At all times relevant to this action, plaintiff was a union member of UAW Local #2327. From August 22, 1996 through June 30, 1999, and continuing through today, UAW Local #2327 was a party to a collective bargaining agreement with the Training School. While at the Training School, plaintiff was employed under the terms of the collective bargaining agreement.

On December 29, 1997, plaintiff was terminated from her employment at the Training School. Defendant justified the termination by asserting that Thomas-Still falsified payroll records by signing in ten minutes earlier than she actually arrived to work. Plaintiff pursued a grievance, which was handled by way of arbitration, pursuant to the terms of Articles XIII and XIV of the collective bargaining agreement. On April 23, 1999, Arbitrator Scott E. Burchheit issued an Opinion and Award sustaining plaintiff's grievance and ordering that Thomas-Still be reinstated with full seniority and be made whole for all wages and benefits lost as a result of her termination. (See Pl.'s Opp., Ex. C, Case No. 18 300 00240 98, American Arbitration Association Opinion and Award, hereinafter "Arbitration Award.")

On June 3, 1999, plaintiff returned to work as a group home counselor at the Training School. On May 24, 1999, counsel for the Training School requested mitigation of damages information for Ms. Thomas-Still from UAW Local 2327's counsel. (See Huggett Certif., ¶ 4, Ex. 1.) On June 2, 1999, plaintiff sent a letter to James A. Mallardi, Jr., the Human Resources Director at the Training School. (See Pl.'s Opp., Ex. D.) The letter followed up on an earlier telephone conversation between the two and asked for a written assurance from the Training School and the UAW Local 2327 that the "hostile and prejudice work environment would come to an immediate halt." (Id.) The letter also provided that "upon my return to work, you said all my time (vacation), benefits, raises, would be restored as if I never was terminated. I asked about my remedy for my lost wages and benefits per the arbitration award, your response was to see what was a fair remedy . . . and that could be resolved in a month to forty-five days." (Id.) The letter provided that earnings information for 1996 and 1997 was being supplied therewith. (Id.)

On June 23, 1999, the Training School provided its counsel with wage and past income rates, as well as a 1996 W-2 form for Thomas-Still. (Pl.'s Opp., Ex. F, Letter from Mallardi to Huggett, Jun. 23, 1999.) On June 25, 1999, the Training School's counsel forwarded Thomas-Still's wage and past income rates to counsel for UAW Local 2327. (Huggett Cert., Ex. 2, Letter from Huggett to Litvin, Jun. 25, 1999.) The Training School again requested information from the union about Thomas-Still's mitigation and unemployment compensation earnings and advised counsel for the Union (Litvin) that the Training School wanted to make payment on the arbitration award to Thomas-Still before the end of June 1999. (Id.)

Plaintiff asserts that she had repeated conversations with Mallardi until he left the position of Human Resources Director and also that he advised her that he was trying to work out a deal for her. (See Thomas-Still Aff., ¶ 6.) Plaintiff advised Mallardi that she was unemployed from December 29, 1997 through June 3, 1999 because employers were wary of the negative reference from the Training School. (Id., ¶¶ 5-6.) Plaintiff also asserts that Sandy Cheeks, the Union Shop Steward, advised her that the Training School had made an offer of $50,000.00 to settle her claim. (Id., ¶ 6.) When Patricia Mack took over as the Training School's Human Resources Manager, plaintiff alleges that she received no further responses to her questions about her back pay award. (Id., ¶ 7.) Plaintiff's assertions by affidavit, cited here, were confirmed by her testimony.

On October 25, 1999, UAW Local 2327 President Archie Hepler wrote to Jane Detweiller, the Training School's Chief Executive Officer, and inquired into the status of back pay for Ms. Thomas-Still. (Huggett Certification, ¶ 6.) In or about November or December 1999, Fran Smith, New Jersey Area Director of UAW, AFL-CIO, Region 9, spoke to plaintiff regarding the payment of her back pay award. (Smith Aff., ¶ 3.) Smith advised plaintiff that she was required to provide information on benefits and income she earned while terminated, so that her back pay award could be calculated and paid. (Id.) Smith advised plaintiff that because she refused to provide such mitigation information to UAW Local 2327, the Union could not require the payment of her back pay. (Id.) Smith affirmed that he has not spoken to Ms. Thomas-Still since that conversation in late 1999 and that he never spoke with her in December 2000. (Id., ¶ 4.) Smith likewise repeated these assertions in his testimony.

On the other hand, plaintiff testified that Smith advised her to get an attorney in December 2000. I find that plaintiff has established that her union continually indicated to her that it was undertaking efforts on her behalf to enforce the back pay award throughout 1999 and 2000, until December 18, 2000, when Smith told her, in response to her dissatisfaction about her local union's lethargic efforts, that she should get her own attorney if she was not satisfied since the union could do no more for her.

The events leading to Smith's December 18, 2000 statement are summarized as follows. On November 3, 1999, defendant's attorney, Mr. Huggett, corresponded with Archie Hepler and requested mitigation employment information from him, so that plaintiff's back pay award could be calculated and paid. (See Huggett Certification, ¶ 7, Ex. 3.) Huggett noted that plaintiff and her union had failed to provide the necessary employment and mitigation information, and that no payment could be made by defendant until such information was received. (Id.) In March of 2000, plaintiff attended a union members meeting at the Ramada Inn in Vineland, where she heard Fran Smith speak about her situation as a "win" by the union for one of its sisters. (Thomas-Still Testimony, Dec. 6, 2001; Pl.'s Supp. Exs. 3-4.) A former co-worker of plaintiff's, Michael E. Liles, confirmed that he attended the meeting with plaintiff in March 2000 and that Smith spoke about her situation, although he did not use her name. (Pl.'s Supp. Ex. 3.) Smith appeared to be unaware in March, 2000 that plaintiff had not received payment upon her successful award.

On April 29, 2000, plaintiff was again terminated from her employment at the Training School. *fn3 Plaintiff claims that she telephoned Detweiller in August 2000 and advised her that she would be taking legal action because she had not received her back pay award. Plaintiff contends that Detweiller advised her that a lawsuit was not necessary and that the Training School's attorneys would work out a figure for her award in order to bring closure to the matter. On August 11, 2000, Patricia Mack, the Training School's Human Resources Director, wrote a letter to plaintiff, confirming their recent conversation and advising her that "[d]iscovery of the facts are vital to your arbitration award. We will inform you of our progress accordingly." (Pl. Supp. Ex. 5.) On December 4, 2000, Archie Hepler, President of UAW Local 2327, wrote to plaintiff regarding the topic of "award follow-up." (Pl. Supp. Ex. 7.) Hepler confirmed their recent telephone conversation and advised Ms. Thomas-Still that "[a]s discussed, [the Union] has scheduled an appointment to meet with you on December 12, 2000 at the Union Headquarters . . . to submit your affidavit of the facts surrounding the delay in acquiring your award." (Id.) Hepler added that "it is [the Union's] goal to bring closure to these proceedings." (Id.) This letter confirms plaintiff's testimony that as of early December 2000, the Union still communicated with her about resolving her claim. Shortly thereafter, plaintiff recognized that the local union was not really pursuing her claim and she complained to the area level, to Mr. Smith's office, in Trenton. Her telephone records reflect that she placed three calls to Mr. Smith's Trenton office on December 18, 2000, of the duration of 8 minutes, 5 minutes, and 2 minutes. (Pl.'s Supp., Ex. 6.) These records likewise confirm her testimony that she had also called Smith's office in November, 1999 and May, 2000.

Mr. Smith testified that he was promoted in September or October of 2000, becoming regional director of Region 9, supervising the new representative Sandy Urban, whose jurisdiction included Local 2327, among others. He testified that if plaintiff had called his office in December 2000 as she maintains, her call would have been forwarded to Sandy Urban and not to him. He testified that when a call came from a Local, his secretary would tell him and he would direct the call to the secretary for the proper representative, who would handle it, since he was out of the day-to-day details.

Smith further testified that he last spoke with plaintiff in November or December of 1999, as there was a lot of activity with the Local's president Archie Hepler around that time. He told plaintiff she should provide the information the Local requested, because it was necessary for concluding the process of the award computation. He also said he never told plaintiff to get a lawyer because the union would do nothing more for her. The defendant also points out that plaintiff's call to Buffalo, when she was allegedly dissatisfied with Smith, occurred on November 29, 1999, as revealed by her phone records, not in 2000.

In fact, all of the credible evidence in the case confirms that the union and employer remained actively engaged in trying to resolve the back pay issue well beyond December of 1999 and throughout the year 2000. As difficult as it may be to understand how this trivial dispute about back pay compensation could occupy so many seemingly reasonable people for so long a time, the fact of the matter is that it did. For example, counsel for the Training School wrote to the Local's President Archie Hepler on November 3, 1999, insisting upon copies of the 1999 income tax return, among other things, which return would not be done until April 15, 2000. (Huggett Cert., Ex. 3.) *fn4

I find that there were multiple conversations between plaintiff and the Trenton office of Fran Smith in November, 1999 and May, 2000 and December, 2000. I find further as discussed below that the union's efforts continued sporadically until breaking down in December, 2000. Plaintiff spoke with Smith personally when he attended a local union meeting held on March 30, 2000. Plaintiff recalls that Smith spoke to the Local about procedures for grievance issues, and that he mentioned plaintiff's successful case, although not by name, and seemed unfamiliar with the fact that she had still not been paid her back pay award. Union member Michael E. Liles confirmed plaintiff's recollections about the March 30, 2000 Smith speech in his Affidavit of December 11, 2001. (Pl. Supp. Ex. 3.) The Local Union's Memorandum announcing the March 30, 2000 meeting is also in evidence (Pl. Supp. Ex. 4), corroborating Liles and Thomas-Still.

Plaintiff's testimony that she followed up in August, 2000, by providing information to Ms. Mack is also confirmed by Mack's letter of August 11, 2000, in which Mack promised to inform plaintiff of the Training School's "progress" in discovery of her facts that are "vital" to computing the arbitration award. (Pl. Supp. Ex. 5.) By December 4, 2000, Thomas-Still continued to complain to the local union about the delay to Archie Hepler, who wrote to her to set up an interview. (Pl. Supp. Ex. 7.)

I find that plaintiff's recollection is correct that she spoke with Fran Smith in March, 2000 and again in December, 2000 about her case, and that it was on the latter occasion that he told her she was free to hire an attorney herself if she was not satisfied and that the union could do nothing more for her. Her testimony that her call to Buffalo came after the December, 2000 conversation may be incorrect, since it is not reflected in her phone bills, but this is of little weight since she continued to work with her union after calling Buffalo, and throughout 2000. Smith does not have a good recall of many of the events, understandably since he had so many duties and responsibilities other than this one local case. His testimony was incorrect, for example, that the Local 2327 contract negotiations with the Training School probably concluded on its last day (June 30, 1999), when in fact that contract was extended as negotiations continued well beyond the expiration date until ratified October 22, 1999, according to Director Jane Detweiller's testimony. Likewise, he did not specifically recall attending the March 30, 2000 meeting at which plaintiff spoke to him, although he did recall attending a union function at the Ramada Inn in Vineland. Likewise, he did not recall relating the story of plaintiff's successful arbitration, although others recalled it.

Even though his duties changed, his office location and telephone remained the same in December of 2000, and when Thomas-Still's calls came in that month he accepted one and spoke again with her, perhaps because of his familiarity with her case and his prior involvement in advising Hepler what to do, rather than referring the call to Sandy Urban's secretary. That plaintiff understood Smith to be advising her to go ahead with her plan to get a lawyer if she was dissatisfied is also confirmed by her testimony that within days she began calling attorneys, reflected again in her phone bill for calls on December 20 and 21, 2000 to the office of her present attorney, Michelle Douglass in Linwood, New Jersey. Ms. Douglass has represented that this was plaintiff's initial contact with her office.

On February 21, 2001, plaintiff filed a Complaint in the Superior Court of New Jersey, Law Division, Cumberland County, demanding that defendant be ordered to determine the amount of her back pay award and that the Arbitration Award be confirmed. (See Pl.'s Opp., Ex. A.) On March 22, 2001, this action was removed by defendant to this Court.

In summary, plaintiff's recollection that she spoke to Smith in December, 2000, and was told that she should go ahead and hire a lawyer to pursue her back pay claim as awarded by the arbitrator is more reliable and consistent with the pattern of known events, as discussed above. Likewise, her impression that it became necessary to retain an attorney to enforce the award because the Union would not be doing so, was reasonable based upon all the circumstances, as of December 18, 2000.


This action, which seeks to enforce an arbitration award rendered pursuant to the terms of a Collective Bargaining Agreement ("CBA") between plaintiff's union UAW Local 2327 and defendant, the Training School, is governed by Section 301(a) of the National Labor Relations Act ("NLRA"). It has long been established that an individual employee may bring suit against his employer for breach of a CBA. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 2290, 76 L. Ed.2d 476 (1983)(citing Smith v. Evening News Assn., 371 U.S. 195, 83 S. Ct. 267, 9 L. Ed.2d 246 (1962)). Ordinarily, however, an employee is required to exhaust the arbitration or grievance remedies outlined in the CBA. DelCostello, 462 U.S. at 163 (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed.2d 580 (1965)). Recognizing the harshness of requiring an employee to rely on a union where the union has breached its duty of fair representation to the employee, the Supreme Court held that an employee may bring suit against the employer and the union, notwithstanding the status of any arbitration or grievance procedure. DelCostello, 462 U.S. at 164, 103 S. Ct. at 2290.

There are two types of Section 301 actions that spring from the Court's reasoning in DelCostello: pure and hybrid. A "pure" Section 301 action occurs when a union sues an employer for breach of a collective bargaining agreement. See Service Employees Int'l Union Local 36, AFL-CIO v. City Cleaning Co., Inc., 982 F.2d 89, 94 n.2 (3d Cir. 1992). This is because the union, which ordinarily acts as an employee's exclusive bargaining representative, assumes the responsibility of ensuring that arbitration awards are enforced on behalf of their union members. The Third Circuit has held that in pure Section 301 claims, where there are no claims by an employee against the Union for breach of the duty of fair representation, state-law statute of limitations apply. Service Employees, 982 F.2d at 95 (applying the Pennsylvania six year contract action limitation to a pure section 301 action to enforce an arbitrator's award under a CBA).

A "hybrid" Section 301 action occurs when an employee brings suit directly against an employer to enforce an arbitration award. Service Employees, 982 F.2d at 94 n. 2. In a such a hybrid case, the employee must show that the employer breached the CBA and must additionally demonstrate that her union failed to seek judicial enforcement of the award on her behalf, and therefore breached its duty of fair representation to the employee. See Vaca v. Sipes, 386 U.S. 171, 185 (1967); Albright v. Virtue, 2001 WL 1558061, *9 (3d Cir, Dec. 6, 2001); Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 886-87 (11th Cir. 1985). It is undisputed that the six month limitation period provided in section 10(b) of the NLRA, 29 U.S.C. § 160(b), applies to these "hybrid" actions. Service Employees, 982 F.2d at 94 (citing DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed.2d 476 (1983); Taylor v. Ford Motor Co., 761 F.2d 931, 933 (3d Cir. 1985)).

The parties do not seriously dispute that this action is a hybrid Section 301 action by an employee against an employer for enforcement of an arbitration award made pursuant to a CBA. (See Def.'s Br. at 3; Pl.'s Opp. at 8.) The parties do disagree on the applicable statute of limitations and the date on which the applicable statute of limitations began to run in this case.

As a rule, an employee's right to bring suit accrues when she knows or should know of her union's breach of its duty to represent her. Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 887 (11th Cir. 1985)(citing Scott v. Local 863, International Brotherhood of Teamsters, 725 F.2d 226, 229 (3d Cir. 1984); Vadino v. A. Valley ENgineers, 903 F.2d 253, 261 (3d Cir. 1990); Santos v. District Counsel of New York City, 619 F.2d 963, 969 (2d Cir. 1980)). The point at which the statute begins to run is a question of fact to be determined by the district court. Samples, 755 F.2d at 887. This is not always an easy determination to make. See Albright, 2001 WL 1558061, *6. In a case such as this one, where there has been a favorable award to the employee, knowledge of a union's breach of its duty of fair representation to that employee is attributed to the employee when the union notifies her of its decision not to pursue her claim any further, or when she should by use of normal diligence have realized that the union made such a decision. Id., n.7 (citing Scott, 725 F.2d at 229).

Plaintiff's supplemental submissions confirm her testimony that she maintained contact with both the Training School and the Union regarding the resolution of her arbitration award until December 2000. See Pl. Supp. Exs. 3-7. The letters from the Training School and Union referencing their ongoing attempts to get her arbitration award problem solved throughout most of 2000 make it clear that the statute of limitations did not begin to run until December 2000 at the earliest. The Court finds plaintiff has established that her hybrid Section 301 cause of action accrued on or about December 18, 2000, when she knew that her union would not take further steps on her behalf, after about 15 months of fruitless efforts to concretize the back pay award. Plaintiff's complaint, filed in February, 2001, is therefore timely.

Last, defendant's argument that the Union is an indispensable party is incorrect. Defendant cites a single Third Circuit case, Nix v. Spector, 264 F.2d 875, 877 (3d Cir. 1959), in support of its argument that UAW Local 2327 is an indispensable party under Rule 19(a)(2). Nix is distinguishable from this case and DelCostello and Albright clearly overrule the aspect of Nix that requires naming both the employer and the union as defendants. While it is true that the DelCostello Court did not specifically address the issue of indispensable parties, it does state, in strong dicta, that it is the type of action, not the parties, that matters. In relevant part, DelCostello reads: "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." 462 U.S. at 165; see also Carrion v. Enterprise Assoc. Metal Trade Branch Local Union 638, 227 F.3d 29, 34 (2d Cir. 2000)(finding hybrid claim with six month statute of limitations where "nature of the claim" is that employer breached the CBA and the union breached its duty of fair representation to the employee, regardless of which parties are named defendants). Additionally, the Third Circuit recently wrote that cases in which an employee/union member sued only the employer are atypical, but permissible under DelCostello. Albright, 2001 WL 1558061, *9.


For the reasons discussed herein, defendant's motions to dismiss pursuant to Rules 12(b)(6) and 12(b)(7) will be denied. The Court finds as a fact that plaintiff's cause of action herein accrued on or about December 18, 2000, and that this suit was timely filed. The accompanying Order is entered.


This matter having come before the Court upon defendant's motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P., and alternatively to dismiss for failure to name an indispensable party (UAW Local 2327) pursuant to Rule 12(b)(7), Fed. R. Civ. P. [Docket Item 7-1]; and the Court having considered the submissions of the parties; and the Court having heard testimony and argument on December 6 and 14, 2001; and for the reasons discussed in an Opinion of today's date;

IT IS this 20th day of December 2001 hereby

ORDERED that defendant's motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) or, alternatively, pursuant to Rule 12(b)(7) be, and hereby is, DENIED; and

IT IS FURTHER ORDERED AND ADJUDGED that plaintiff's cause of action accrued on or about December 18, 2000 and that her Complaint was timely filed.

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