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Kush v. United Food & Commercial Workers Union Local 152

United States District Court, Third Circuit

May 14, 2013



FREDA L. WOLFSON, District Judge.

Plaintiff Dakuquian Kush ("Plaintiff"), a member of United Food & Commercial Workers Union Local 152, CLC (the "Union"), is a former employee of Defendant Case Pork Roll Company, Inc. ("Case" or "Defendant"), who claims that he was wrongfully terminated. Plaintiff grieved to the Union that he was wrongfully terminated by Case, but the Union made a determination that Plaintiff's grievance against Case would not proceed to arbitration. In his two-count Complaint, Plaintiff alleges first, that the Union failed to fairly represent him in his grievance, and second, that Case breached their Collective Bargaining Agreement in violation of § 301 of the Labor Management Relations Act, by wrongfully terminating Plaintiff. In the instant matter, Case moves to dismiss Plaintiff's claims on the basis that Plaintiff failed to exhaust available intra-union remedies prior to instituting this action. Both the Union and Plaintiff oppose Defendant's motion.

For the reasons that follow, the Court finds that Plaintiff has not exhausted intra-union grievance procedures with respect to his fair representation claim against the Union, and as a result, it appears that his claims against both Case and the Union would be dismissed based on that failure alone; nevertheless, based upon the Union's resistance to exhaustion, within thirty days from the date of the Order accompanying this Opinion, the Union or Plaintiff may present to the Court any additional bases that they believe would relieve Plaintiff's duty to exhaust his administrative remedies. Accordingly, Defendant's motion to dismiss is DENIED at this time.


Case and the Union were parties to a Collective Bargaining Agreement ("CBA"), which covered Case's employees, including Plaintiff, at its Trenton, New Jersey facility. (Compl., § 5.) On October 11, 2011, Plaintiff was terminated from his employment with Case. ( See Compl., § 7.) Subsequently, Plaintiff requested the Union to file a grievance based on an alleged wrongful termination by Case in violation of the CBA. (Compl., § 8.) Joseph Williams ("Williams"), Plaintiff's union representative, filed an initial grievance. ( Id. ) In that grievance, Williams asserted that there was insufficient evidence to support Case's allegations of theft by Plaintiff. (Compl., § 9.) The representative requested that management should reconsider Plaintiff's termination. ( Id. ) Subsequently, however, Case notified Williams that it would not reverse its position. ( Id. )

Thereafter, Plaintiff requested the Union to arbitrate the denial of the grievance under the terms of the CBA. (Compl., § 10.) On November 17, 2011, Plaintiff appeared at the Union's Hammonton, New Jersey office before the "Union Grievance Review Committee (the "Committee")." ( Id. ) On November 29, 2011, the Committee informed Plaintiff that it voted that no further action shall be taken on behalf of Plaintiff's grievance. ( See Id. ) Plaintiff was also informed that the Union's decision to take no further action could be appealed to the Executive Board of the Local Union. ( Id. )

On December 6, 2011, Plaintiff appealed the Committee's decision to the Union's Local Executive Board. ( See Compl., § 11.) On January 13, 2012, the Executive Board informed Plaintiff that it would not proceed to arbitration with Plaintiff's grievance and that the Executive Board considered the matter closed. ( Id. ) According to Plaintiff, the Committee advised him that he had no further right of appeal and that the matter was closed." ( Id. )

Without any further action by the Union, on April 9, 2012, Plaintiff filed a two-count Complaint against Case and the Union, alleging in the first count that the Union breached the duty of fair representation, and in the second count that Case wrongfully terminated his employment without just cause, in breach of the CBA. (Compl., §§ 12, 16.)

As to the claim against the Union, Plaintiff asserts that the decision by the Executive Board was improper because "[t]he Union was aware that the owner of Case, Thomas E. Grieb, held a personal animus towards Plaintiff, and that he had previously wrongfully accused Plaintiff of a crime against Case." (Compl., § 12.) Plaintiff further asserts that the Union had assisted Plaintiff in a previous grievance against Case and because of such grievance, he was reinstated to his job by Case. ( Id. ) Plaintiff further alleges that despite this knowledge, "the Union chose to ignore the dearth of evidence on the [theft] charge against Plaintiff and chose to inadequately investigate the charges Case made against Plaintiff." ( Id. ) As a result, Plaintiff argues that "Defendant Union violated its duty to fairly represent [him] by refusing to pursue arbitration of his discharge grievance, " and such inaction was "arbitrary, discriminatory, and capricious and constituted bad faith." ( Id. ) As to the count against Case, Plaintiff asserts that "there were no facts to support the allegation of theft against [him]" and that he "did not commit any these or other actions which would justify the termination of his employment." (Compl., §§ 12, 15.)

Without delving into the merits of Plaintiff's claims, Case argues, inter alia, that Plaintiff failed to exhaust administrative remedies specifically set forth by the Union's Local and International Constitutions with respect to his fair representation claims against the Union. Case contends that because of such a failure, Plaintiff's claims against Case and the Union should both be dismissed.


In this matter, Case's motion to dismiss pursuant to Rule 12(b)(1) presents a factual attack on this Court's subject matter jurisdiction. Indeed, when jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff bears the burden of persuading the court that subject matter jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). In considering a motion pursuant to Rule 12(b)(1), the district court must distinguish between factual and facial challenges to subject matter jurisdiction. Where a defendant contends that the plaintiff's complaint did not properly plead jurisdiction - which is the case here - the court need not consider extrinsic documents, and must "consider the allegations of the complaint and documents referenced therein and attached in the light most favorable to the plaintiff." Gould Electronics, Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Thus, "[w]here an attack on jurisdiction implicates the merits of plaintiff's federal cause of action, the district court's role in judging the facts may be more limited." Martinez v. U.S. Post Office, 875 F.Supp. 1067, 109 (D.N.J. 1995) (citing Mortensen, 549 F.2d at 891).


As an initial matter, in Counts I and II of his Complaint, Plaintiff asserts a "hybrid" § 301/fair representation action against the Union, his collective bargaining representative, and his employer, Case. See G.P. Reed v. United Transportation Union, 488 U.S. 319, 328 (1989); Heffron v. Adamar of New Jersey, Inc., 270 F.Supp.2d 562, 569 (D.N.J. 2003). Indeed, this "hybrid" § 301/fair representation action is comprised of two separate, but interdependent, causes of action that may be brought together. See Felice v. Sever, 985 F.2d 1211, 1226 (3d Cir. 1993) ( citing DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983) ("A plaintiff who has a viable "hybrid" claim against both the employer and the union may opt to bring only the section 301 claim against the employer or the breach of duty of fair representation claim against the union.... Either claim standing alone can be brought in federal court because each has an independent jurisdictional basis"). Ordinarily, in such a hybrid suit, an employee files a claim against the union alleging breach of the duty of fair representation by discriminatorily or arbitrarily failing or refusing to pursue ...

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