United States District Court, D. New Jersey
August 16, 2005.
JOSEPH RABLE, Plaintiff,
IUE-CWA LOCAL 455, Defendant.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
This matter comes before the Court on Defendant IUE-CWA Local
455's motion for summary judgment [docket # 14]. For the reasons
set forth below, the Court will grant Defendant's motion.
Plaintiff, Joseph Rable, ("Plaintiff") began working for Trane
Company on June 1, 1999. (Def. Ex. A Dep. Tr. of Joseph Rable,
11:14-17 ("Tr.")). IUE-CWA Local 455 ("Defendant" or "Local 455")
represents Trane Company employees at Trane's Trenton, New Jersey
plant. Mr. Rable became a dues paying member of Local 455 after
becoming a Trane employee. (Tr. 39:21-40:4).
One year after starting to work for Trane, Mr. Rable applied
for, tested for and received his forklift license from the
Company. (Tr. 16:11-17:21). Employees use a key card to enter the
work building. (Tr. 20:3-4). A green card key indicates a person
has a forklift license, while a red card key indicates that the person does not. (Tr. 20-21). Mr.
Rable was allowed to operate a forklift/had a forklift license
for approximately two years while employed at Trane. (Tr.
18:13-16). That two years spanned 2000 to until sometime in late
2001/early 2002.*fn1 Mr. Rable became aware that he was no
longer allowed to operate a forklift at Trane when he arrived at
work one day and his green card key did not work. (Tr. 19-22).
Plaintiff complained to Trane management about the loss of his
license. (Tr. 24:252-6:1, 27:11-17). A meeting was held involving
Mr. Rable, Kenny Lee (the Chief Steward of Local 455), and a
member of management. Mr. Rable wanted to know when he would get
the green card key back. (Tr. 28:21). Management told Mr. Rable
that his forklift authorization had been taken for medical
reasons and told him he needed clearance from his doctor to
operate a forklift. (Tr. 29:1-4, 32:7-10). Mr. Rable had been out
of work on disability for two to three months prior to the loss
of his license. (Tr. 29:19-22). He has sleep apnea. (Tr. 30:14).
Plaintiff did not provide the employer with the information
they requested. (Tr. 31:113-3:6). Mr. Rable raised the topic with
Mr. Lee and the Local Union President, Felix Tucillo, about the
loss of his license. (Tr. 25:18-27:10, 34:20-35:4, 36:13-16). Mr.
Rable asked to have a grievance filed over the loss of his
license, but Local 455 did not file one. (Tr. 34:12-19). Kenny
Lee attended some meetings involving Mr. Rable and management on
different issues, including the license issue, during Mr. Rable's
employment. (Tr. 27:18-24, 60:22-61:17, 89:3-16).
Trane discharged Mr. Rable on May 4, 2004, due to attendance
problems. Trane has an attendance policy under which employees
can accrue points for various infractions. (Def. Ex. N). Under Trane's work rules, four disciplinary warnings in a
12-month period makes an employee subject to discharge. (Def. Ex.
O). Plaintiff was discharged after receipt of his fifth warning
notice in 12 months. (Def. Ex. G).
Plaintiff's complaint states the following reasons, in full,
for suing the Defendant: "For breach of contract and I received
no value for the money paid in dues. At times they worked against
me resulting in me getting fired." (Pl. Complaint) (typos in
Plaintiff filed his complaint on July 7, 2004, in the Superior
Court of New Jersey Law Division, Special Civil Part, Mercer
County. On August 13, 2004, Defendant removed the action to
United States District Court, District of New Jersey. Defendants
filed the instant motion for summary judgment on June 24, 2005,
with a return date of July 18, 2005. Having received no
opposition to this motion, the Court sent a letter to Plaintiff
dated July 11, 2005, and docketed on July 13, 2005. The letter
informed Mr. Rable that the return date for this motion would be
adjourned to August 15, 2005, allowing him an extension to submit
his opposition by August 1, 2005. The letter also informed
Plaintiff that if he chose not to submit opposition, the motion
would be deemed unopposed and disposed of accordingly. To date,
the Court has not received any opposition from Plaintiff, nor any
other communication from him with regard to this motion.
A. Summary Judgment Standard:
Summary judgment is appropriate if there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56; Serbin v. Bora Corp., 96 F.3d 66
, 69 n. 2
(3d Cir. 1996). In evaluating a summary judgment motion, a court
must "draw all reasonable inferences in favor of the non-moving
party." Armour v. County of Beaver, PA, 271 F.3d 417
, 420 (3d
Cir. 2001) (quoting Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000)). A motion for summary judgment
requires the non-moving party to set forth specific facts showing
that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242
, 250 (1986); Albright v. Virtue,
273 F.3d 564
, 570 n. 6 (3d Cir. 2001). The moving party carries the
initial burden of showing that no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317
Defendants must identify the portions of the pleadings, and
affidavit "which [they] believe? demonstrate the absence of a
genuine issue of material fact." Celotex, 477 U.S. at 323.
Once the moving party has made a properly supported motion for
summary judgment, the burden shifts to the non-moving party to
"set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 242.
The mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); Quiroga v. Hasbro,
Inc., 934 F.2d 497, 500 (3d Cir. 1991) (noting that a motion for
summary judgment is not defeated by mere allegations, general
denials, or other "vague statements"). Rather, only disputes
regarding facts that might affect the outcome of the lawsuit
under the governing law will preclude the entry of summary
judgment. Anderson, 477 U.S. at 247-48. If the evidence is
"such that a reasonable fact-finder could find return a verdict
for the nonmoving party," summary judgment should not be granted.
Id. at 248; Lawrence v. Nat'l Westminster Bank of New Jersey, 98 F.3d 61, 65 (3d Cir. 1996).
However, where the facts are not in dispute and the issues
contested in a summary judgment motion are legal issues, the
Court may proceed to decide the legal issues and rule accordingly
on the summary judgment motion. See Ingram v. County of
Bucks, 144 F.3d 265, 267 (3d Cir. 1998) (when there is no
genuine issue of material fact in dispute and the issue facing
the court is a question of law, it can properly be resolved on
If the nonmoving party fails to oppose the motion, Rule 56(e)
provides that the Court may only grant the moving party's motion
for summary judgment "if appropriate." Anchorage Assocs. v. V.I.
Bd. of Tax Review, 922 F.2d 168, 175 (3d. Cir. 1990). A moving
party's motion is appropriately granted when that party is
entitled to judgment as a matter of law. Id. When, as here,
"the non-moving party fails to oppose the motion for summary
judgment by written objection, memorandum, affidavits and other
evidence, the Court will accept as true all material facts set
forth by the moving party with appropriate record support." Carp
v. Internal Revenue Serv., 2002 WL 373448, at *2. (D.N.J., Jan.
28, 2002) (internal citations omitted). In addition, even if the
record contains facts that might provide support for the
non-moving party's position, "the burden is on [that party], not
the court, to cull the record and affirmatively identify genuine,
material factual issues sufficient to defeat a motion for summary
judgment." Morris v. Orman, 1989 WL 17549, at *8 (E.D. Pa. Mar.
B. Timeliness of Plaintiff's Forklift License Claim:
Plaintiff alleges that Defendant breached its duty of fair
representation owed to him because "[t]hey never followed up on
my request to get my forklift license." (Def. Ex. E). He also asserts that he asked to file a grievance over the loss of
his license, but the union ignored his request. Defendant claims
that Plaintiff raised these allegations too late for this Court
to consider them.
Plaintiff's "contract" allegations amount to a claim that Local
455 breached its duty of fair representation owed to him. "It is
a fundamental axiom of federal labor law that a union's status as
the exclusive bargaining representative of an employee carries
with it a statutory obligation to serve the interests of all
members. . . ." Riley v. Letter Carriers Local No. 380,
668 F.2d 224, 228 (3rd Cir. 1982) (quoting Vaca v. Sipes,
87 S.Ct. 903, 909 (1967)). One way in which a union fails to meet its
obligation is by "arbitrarily ignor[ing] a meritorious grievance
or process[ing] it in a perfunctory fashion. . . ." Vaca v.
Sipes, 87 S.Ct. 903, 917 (1967). Plaintiff asserts that he had a
meritorious grievance issue and Local 455 ignored it.
A six-month statute of limitations applies to duty of fair
representation lawsuits. DelCostello v. Steelworkers, et al.,
103 S.Ct. 2281 (1983). Under the Third Circuit's case law, "[t]he
six-month period commences when the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the acts
constituting the alleged violation." Vadino v. A. Valey
Engineers, 903 F.2d 253, 260 (3rd Cir. 1990) (internal citation
omitted). Furthermore, the Court of Appeals has instructed that a
fair representation "claim accrues and the six month limitations
period commences when the futility of further union appeals
becomes apparent or should have become apparent." Bensel v.
Applied Pilots Association, et al.,, 387 F.3d 298, 305 (3d Cir.
2004) (internal citation omitted).
Mr. Rable's deposition testimony represents that he asked the
local union to file a grievance for him over management's action
taking his forklift license. He made that request, in his words, "years ago." (Tr. 49:6-16). The evidence indicates the
last date on which Local 455 discussed the issue of Mr. Rable's
license with management was in November, 2003. (See Def. Ex. C,
¶ 10 and attachment). Those factors evidence that any request Mr.
Rable made to have a grievance filed over his lost license was
declined well in excess of six months before July 7, 2004, the
date the lawsuit was filed. Furthermore, Plaintiff's response to
Local 455's Interrogatory Number 1 evidences that in 2003 he held
the opinion the union would not help him. His response states:
"This union is not your father [sic] union. In 2003, I came to
believe after countless times and emails to try to talk to them.
They don't care about the member." (Def. Ex. E).
As Plaintiff has not filed any response to Defendant's motion,
the Court has no basis to conclude that Plaintiff did not first
discover, or in the exercise of reasonable diligence should not
have discovered, that it was futile to work through Local 455 at
any time after November, 2003. Therefore, because Plaintiff
brought his duty of fair representation claim concerning the loss
of his forklift license more than six months after he knew or
should have known of the acts constituting the alleged violation,
this claim will be dismissed as untimely.
C. No Breach of the Duty of Fair Representation:
Plaintiff's complaint essentially claims that Defendant
breached its duty of fair representation because he "received no
value for the money paid in dues[, and a]t times they worked
against me resulting in me getting fired." Defendant asserts that
Plaintiff cannot establish that Local 455 breached this duty.
The law is clear that a "breach of the statutory duty of fair
representation occurs only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith."
Vaca v. Sipes, 87 S.Ct. at 916. More specifically, "[i]n the
context of a grievance proceeding, the rule is that a union may
not arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion. . . ." Riley, 668 F.2d at 228. The
Plaintiff accuses IUE-CWA Local 455 of being "seriously negligent
in their duties." (Tr. 67:8-20). However, negligence is not
synonymous with "perfunctory." Findley v. Jones Motor Freight,
Division Allegheny Corp., 639 F.2d 953, 960 (3d Cir. 1981).
Accordingly, negligence does not suffice to establish a breach of
the duty of fair representation. Id.
In addition, the law is clear that an employee does not have an
absolute right to grievance arbitration. Vaca v. Sipes,
87 S. Ct. at 917. That principle even applies with respect to allegedly
meritorious grievances. See, Findley, 639 F.2d at 958 ("The
mere refusal of a union to take a complaint to arbitration does
not establish a breach of duty, even if the member's claim was
meritorious.") (internal citation omitted).
Trane discharged Mr. Rable for attendance reasons on May 4,
2004. The discharge came after Mr. Rable received his fifth
warning notice for an attendance work rule violation. (Def. Ex. F
May 4, 2004 warning notice; Def. Ex. G May 18, 2004 letter).
Local 455 filed a grievance over Mr. Rable's discharge on May 4,
2004. (Exhibit H). This grievance was filed in accordance with
Mr. Rable's wishes and upon his request. (Tr. 62:7-63:1). Local
455 forwarded the discharge case to the IUE-CWA's Regional
Director, Joseph Giffi, for possible arbitration. (Def. Exhibits
B, K, and L). That request was denied on the merits after Mr.
Giffi reviewed all of the case information. (Def. Ex. L). Mr.
Giffi notified Mr. Rable of the decision in writing and went so
far as to attach a copy of the CWA's appeal procedure. Local 455
advised the employer that it was withdrawing Mr. Rable's grievance through a letter
dated September 23, 2004.
Plaintiff has specifically rejected the notion that Defendant
was motivated by discrimination or acted in bad faith, as
evidenced by his deposition testimony:
Q. Do you think, are you alleging that the union
discriminated against you or took action to harm you
because you had been ill?
A. It's not so much the union was out to get me, they
were never out to get me. The union just does they
take the easy way out, they just go along with the
Q. Are you alleging, and please listen to my
question, are you alleging that the union
discriminated against you because of your illness?
A. I don't think they care one way or another.
Q. It's a yes or no question.
In addition, Plaintiff was unwilling to provide documentation
to management so they could clear him to have a forklift license.
(Def. Ex. B; Tr. 27:13-33:9). As Defendants correctly point out,
Plaintiff's unwillingness to do so demonstrates that it was
reasonable for Local 455 to decide not to file a written
grievance on his behalf for a forklift license.
As Plaintiff has not filed any response to Defendant's motion,
the Court has no basis to conclude that Local 455's conduct
toward him was arbitrary, discriminatory, or in bad faith.
Indeed, from the evidence currently before the Court, it does not
appear that Defendant acted inappropriately under the
circumstances. Therefore, Plaintiff's complaint, which
essentially asserts a breach of a duty of fair representation,
will be dismissed.
For the foregoing reasons, Defendant's motion for summary
judgment will be granted. The Court will enter an appropriate Order.