United States Court of Appeals
Fifth Circuit
In the FILED
United States Court of Appeals August 11, 2006
for the Fifth Circuit Charles R. Fulbruge III
_______________ Clerk
m 05-30624
______________
DAVID LEE; KEVIN DUGAS; WAYNE CARBO;
CESHA JOHNSON; CHRISTOPHER VICTORIANO,
Plaintiffs-Appellants,
VERSUS
CYTEC INDUSTRIES, INC.;
PAPER, ALLIED-INDUSTRIAL CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION, AFL-CIO-CIC, LOCAL 4-447;
ALLIED-INDUSTRIAL CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION, AFL-CIO-CIC,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:03-CV-3176
_________________________
Before SMITH, GARZA, and CLEMENT, monia Unit in June 2001. Cytec and its union
Circuit Judges. agreed on the re-arranging of employees after
the closing based on the Collective Bargaining
JERRY E. SMITH, Circuit Judge. Agreement (“CBA”) and seniority rights. In
July 2001, the final bumping sheet was posted
Cytec Industries (“Cytec”) closed its Am- by Cytec on bulletin boards at the relevant fa-
cility. David Lee, Kevin Dugas, Wayne Carbo, seniority system.2 But the court acknowledged,
Cesha Johnson, and Christopher Victoriano with respect to claims arising in the non-griev-
sued on November 12, 2003, alleging breach of ance context, such as the claim challenging the
contract claims against Cytec, breach of fair adoption of the bumping sheet (as opposed to
representation claims against the union, and grievance-related claims challenging how the
several other claims based on their displacement union processed a particular grievance), courts
and/or recall rights. The district court granted have held that the statute was equitably tolled
summary judgment for the defendants. We for the duration of the grievance proceedings
affirm. until the employees knew or should have
known that the union would no longer process
I. their grievances. See Adkins v. Int’l Union of
A. Elec., Radio & Machine Workers, 769 F.2d
Plaintiffs argue that the district court erred in 330 (6th Cir. 1985) (holding that the
holding that the statute of limitations in a hybrid employees’ good-faith attempt to exhaust their
section 301 lawsuit starts to run when the internal contractual remedies through the
employees knew or should have known of the grievance process will prevent the accrual of
union’s breach.1 Plaintiffs contend instead that their action).3
the statute runs from when they knew or should
have known that the union would no longer The district court obwerved, however, that
process their grievances. This oversimplifica- those cases are distinguishable because they in-
tion of the district court’s decisions is mis-
leading.
2
See Barrow v. New Orleans S.S. Ass’n, 932
That court did note, with respect to plain-
F.2d 473, 478 (5th Cir. 1991) (holding that any
tiffs’ displacement claims, that under the law of
claims based on the allegedly unlawful adoption and
this circuit, limitations started running when subsequent applications of a seniority system ac-
plaintiffs knew or should have known of the crued when the employee knew of the breach of the
union’s breach of their rights, namely with the CBA, namely of the new seniority system, “re-
publication of the July 2001 bumping orders gardless of when the effects of such system are ac-
according to which plaintiffs were to be dis- tually felt”); Barrett v. Ebasco Constructors, Inc.,
placed, an event akin to the adoption of a new 868 F.2d 170, 171 (5th Cir. 1989).
3
As the district court explained, a claim for
breach of duty of representation in the adoption of
a new seniority system or a bumping sheet does not
arise in a grievance context, because it does not
1
Hybrid suits, such as this, formally comprise challenge discriminatory conduct in the application
two causes of action. First, the employee alleges of the grievance procedure. See also Adkins, 769
that the employer violated § 301 of the Labor Man- F.2d at 336 (“Certainly, the typical hybrid claim is
agement Relations Act (“LMRA”), 61 Stat. 156, 29 based on the union’s failure to properly process a
U.S.C. § 185, by breaching the collective-bargain- grievance, so nonjudicial enforcement has already
ing agreement. Second, the employee claims that failed. But where the union’s alleged breach of duty
the union acted in such a discriminatory, dishonest, is in a nongrievance context, as here, the employees’
arbitrary, or perfunctory fashion as to breach its du- good-faith attempt to exhaust their contractual
ty of fair representation. remedies will prevent the accrual of their action.”).
2
volved situations in which a grievance was filed the six-month federal statute of limitations
with the union within six months of the breach expires.5 We conclude, however, that this
of the CBA. The court held that these cases are exception to the general accrual rule could not
inapplicable here, because plaintiffs have not confer more rights than those that plaintiffs
filed grievances with the union regarding their would have if they were not entitled to this
displacements within six months of July 2001, exception, that is if plaintiffs did not have to
when the violation of the CBA occurred. exhaust internal remedies.
Plaintiffs argue that the district court erred, In other words, plaintiffs cannot wait until
nonetheless, because for tolling to apply, there the statute of limitations for a federal lawsuit
is no requirement that a grievance must be filed has passed and then file a grievance to circum-
with the union within six months of the breach. vent the applicable six-month statute. This is
The courts are split on the issue, however, and especially so given that the six-month limi-
this appears to be an issue of first impression in tations period under federal law is an extension
this circuit.4 of the time period provided by many state
statutes.6
We agree with the district court and the oth-
er courts that have held that to invoke equitable Furthermore, because federal law favors ear-
tolling, an employee must file a grievance with ly resolution of labor disputes, DelCostello v.
the union within six months of the adoption of Int’l Bhd. of Teamsters, 462 U.S. 151, 168
a new seniority system. Equitable tolling is an (1983), tolling is applicable only for a “good
exception to the general rule that an employee faith” attempt to pursue non-judicial remedies,
has six months to sue from the discovery of the Adkins, 769 F.2d at 335 (“[T]he employees’
breach of the duty of fair representation. The good-faith attempt to exhaust their contractual
rationale for it is that because some plaintiffs remedies will prevent the accrual of their ac-
must exhaust internal contractual remedies (e.g. tion.”). Here, the lack of good faith is demon-
the grievance process) before suing, it would be strated by the fact that the grievance was not
unfair to say that the plaintiffs’ claim is barred filed within the 10-day period required by the
by limitations if, while the grievance is pending, CBA.7 But even if the CBA allowed eight
4
Compare Whittle v. Local 641, Int’l Bhd. of 5
See, e.g., Frandsen v. Bhd. of Ry., Airline &
Teamsters, 56 F.3d 487, 490 (3d Cir. 1995) (re- S.S. Clerks, 782 F.2d 674, 681-84 (7th Cir. 1986).
jecting the holding that the failure to file either a
grievance or a legal action within six months of the 6
Frandsen v. Bhd. of Ry., Airline & S.S. Clerks,
date plaintiffs discovered the violation of the CBA 782 F.2d 674, 681 (7th Cir. 1986) (“DelCostello’s
made their federal suit untimely) with Long v. Gen. six-month statute of limitations lengthened the
Motors Corp., 19 Fed. App’x 200, 203 (6th Cir. amount of time a worker had in most states to file a
2001) (“But the Complaint clearly reflects that the claim in court after exhausting internal union
plaintiffs made no attempt to initiate a formal griev- appeals.”).
ance until 1994, after the six-month statute had run.
7
Because the plaintiffs waited beyond the six-month For the reasons stated by the district court, we
time period to invoke their formal contractual rem- reject defendants’ contention that the grievance must
edies, they cannot benefit from the late accrual be filed within the period prescribed by the CBA
rule.”). (continued...)
3
months to file such a grievance, a plaintiff who Plaintiffs also urge that the union could not
waits until the seventh month to bring such a have rejected Carbo’s claim without a vote of
grievance waives his right to the federal action, the membership. But, once a grievance is re-
which must be brought within six months. jected at an early stage, the grievant must self-
process that issue for it to reach a vote of the
We also reject plaintiffs’ contention that membership. As the district court indicated,
events that occurred after June 2001 changed there was no evidence that Carbo attempted to
the announced displacements and re-started the reach the voting stage on his own after Novem-
limitations period. As the district court ex- ber 15, 2002. Therefore, the district court cor-
plained, there is no evidence that plaintiffs were rectly held that Carbo’s recall claim was barred
told in June 2001 that the announced dis- because he did not sue within six months of
placements were tentative. To the extent that November 2002.
a claim for the failure to account for resigna-
tions in the implementation of the bumping The court also found that Lee’s recall claims
sheet did accrue later, that claim fails because it were barred because he did not sue within six
does not represent a breach of the duty of fair months of December 2002, when Wade Gilbeau
representation, as we will explain in part II.B., (the union-Cytec group chairman) told him that
infra. a grievance already in existence (No. 01-36)
would not benefit Lee. Plaintiffs claim
B. nonetheless that this grievance does benefit
With respect to the recall claims, the district Lee.
court found that only Johnson’s and Victoria-
no’s were not barred by the statute of limita- But, if the grievance benefits Lee, and is cur-
tions. It held that plaintiff Carbo’s recall claim rently in arbitration, then Lee cannot file this
was barred by limitations because he did not lawsuit until the arbitration ends, because he is
sue within six months of November 15, 2002, not complaining about the arbitration pro-
when he received notice that his grievance was ceedings. Only if the grievance does not benefit
denied; thus he knew or should have known him can Lee claim a breach of the duty of fair
that the union would not take any further action representation, but in that case, he is barred by
on his grievance without some action on his limitations, as found by the district court.
part. Plaintiffs challenge the finding that Car- Carbo’s claim about grievance No. 01-36 fails
bo’s claim was untimely, arguing that the union for the same reasons.
had notice of his claim. We do not see how this
affects in any way the fact that under the law, II.
Carbo had to sue within six months of the time A.
it became obvious that the union had rejected Plaintiffs dispute the district court’s finding
his claim. that the union did not act arbitrarily or in a dis-
criminatory or bad faith manner against Johnson
and Victoriano. They had argued in the district
court that the union breached its duty of fair
7
(...continued) representation by delaying processing their
(here 10 days). Failure to file within the period grievances. That court held that no breach had
prescribed by the CBA, however, can be relevant to occurred, finding that such delay was common
the issue of “good faith.”
4
and that the union has taken steps to pursue brief to arguing that the union breached its duty
plaintiffs’ grievances and will continue to so. of fair representation because it never “fully
processed” any of the grievances involving dis-
Plaintiffs aver that whether the delay was placements. This allegation seems to be anoth-
common is a disputed issue of material fact for er version of the “arbitrary and discriminatory”
the jury and that the district court weighed evi- delay argument described above. But the evi-
dence and made impermissible credibility deter- dence indicates that the grievances were in fact
minations. They insist the court erred in relying being processed, albeit with a delay. Therefore,
on Gilbeau’s testimony that the delay was this claim fails for the same reasons that the
common and a result of the policy of giving pri- “delay” claim fails.
ority to discharge-related grievances over those
that did not involve termination. They also Moreover, even if the claim is recast as ar-
claim that the record included evidence that guing that the union discriminated against “dis-
contradicted Gilbeau’s testimony. In support of placement” claims by purposefully delaying
the “contradiction” they cite only the fact that them in favor of “discharge” claims,8 such con-
grievance No. 01-36 reached a third-step duct was not unreasonable or irrational. Rath-
meeting in less than ten months. er, the union acted on the relevant consider-
ation of giving priority to those who would suf-
This fact does not “contradict” Gilbeau’s fer the mostSSdischarged employees.
testimony. As the district court explained, the
union asserted that the delay was common and B.
that many grievances filed in 2002 and 2003 Appellants argue that the union breached its
were still awaiting arbitration, and that non-dis- duty of fair representation by impairing the sen-
charge grievances commonly take over a year iority rights of “Carbo, Victoriano and Dugas9
to be put to the vote of the membership. That by failing to follow its unlawful 2001 bump or-
is, the fact that several non-discharge griev- der and allowing employees with less seniority
ances such as grievance No. 01-36 were sent to to earn higher wages.” As discussed, of the
arbitration in about a year does not contradict three, only Victoriano’s recall claims are not
the fact that “many” such discharges were still barred, and plaintiffs fail to brief, in this section,
awaiting arbitration, and that “commonly” it how Victoriano’s seniority rights were im-
took over a year for a dispute to be voted to paired.
arbitration.
Even assuming that this claim was not
There is no credibility determination here:
Even if the facts alleged by the plaintiffs are
true, they still are unable to refute the union’s 8
statement that delay was common. Because We do not address the issue of whether such a
generalized claim that all “displacement” grievances
plaintiffs had the burden of proving that the de-
were delayed satisfies the requirement that claims
lay was arbitrary, discriminatory, or in bad faith, for breach of duty of fair representation must show
as opposed to “common,” summary judgment that the plaintiff was singled out for discriminatory
was appropriate. treatment.
Plaintiffs devote another section of their 9
Dugas does not allege any breaches of the CBA
after his displacement.
5
waived for want of briefing, it fails for two rea- make a claim for discriminatory and arbitrary
sons. First, the evidence shows that Victoriano conduct that impaired his seniority rights.11
was displaced from his Warehouseman job by
Tamplain, who was more senior than he was,
because she had a badge number of 3011 and
Victoriano’s badge number was 3086.
10
Second, Victoriano’s complaints with re- (...continued)
spect to less senior employees working in high- its duty of fair representation”). Furthermore, the
union’s interpretation is not necessarily mistaken or
er paying jobs were about Breaux (badge
unreasonable. As plaintiffs admit, article 18.4
3083), Toups (badge 3082), Dunham (badge
provides that an employee displaced by a unit
3087) and Higginbotham (badge 3092), of closing has recall rights to “his” job before other
whom in fact only Dunham and Higginbotham employees are allowed to bid for the position.
were less senior than was Victoriano. Even the
claims based on Dunham’s and Higginbotham’s Therefore, it is not unreasonable to interpret this
higher pay fail to show arbitrary and dis- provision as indicating that Dunham and Higgin-
criminatory action against Victoriano. Rather, botham, displaced on the bumping sheet by more
the record shows that Higginbotham and Dun- senior employees, had a right to recall to their jobs
ham were able to “recall” into their Warehouse- when these senior employees resigned, before Vic-
man jobs because the more senior employees toriano was allowed to bid for them. That is, Vic-
who were supposed to displace them based on toriano did not have recall rights to Dunham’s and
the July 2001 bumping sheet resigned. Higginbotham’s jobs, but only bidding rights.
11
Plaintiffs also argue that the union breached its
Plaintiffs claimed throughout the proceed- duty of fair representation because it acted contrary
ings that not revising the July 2001 bumping to its memberships’ interests. In support of this
sheet to account appropriately for the resigna- claim, they cite several cases but fail to explain in
tions was an “error.” But a failure to account any manner what the union did to be deemed to act
for resignations to modify the bumping sheet, “contrary to its memberships’ interests.” Thus, this
even assuming it was erroneous, shows only half-page claim is waived for failure to brief ade-
negligence, applicable to all who were affected quately.
by this failure, not intentional and invidious ac-
tion targeted at Victoriano. The duty of fair In another subsection devoted to the breach of
representation is not breached by mistakes in the duty of fair representation, plaintiffs also argue
judgment or less than perfect conduct by the that the union ignored its internal rules by
union.10 Without more, Victoriano fails to “disregarding the concerns of a large percentage its
[sic] membership.” Plaintiffs fail to cite any law for
this argument, so it is also waived for inadequate
briefing.
10
Landry v. Cooper/T. Smith Stevedoring Co.,
880 F.2d 846, 852 (5th Cir. 1989); Pease v. Prod. This argument is also very vague. It appears
Workers Union, 386 F.3d 819, 824 (7th Cir. 2004) that it relates to Gilbeau’s denial of a special meet-
(finding that union can be mistaken in its under- ing, despite the fact that a written demand was
standing of the collective bargaining agreement with signed by ninety two members. Plaintiffs do not
respect to seniority rights “without departing from state, however, which “internal rule” was violated
(continued...) by this denial.
6
C. constitution arise under state law, it did not
Because, as we have explained, the local hold that claims arising under state law could
chapter of the union did not breach its duty of not be preempted by section 301.
fair representation with respect to any of plain-
tiffs’ timely claims, there is no breach that could Nor could the Korzen court have even ad-
be attributed to the International Union. dressed the issue of whether the claim for
Therefore, the district court correctly dismissed breach of the union’s constitution in that case
the claims against the International Union. was intertwined with the CBA, given that the
plaintiff was an employee of the union, so the
III. CBA did not apply to her. Id.
Plaintiffs contend the district court improp-
erly dismissed their “breach of contract” claim IV.
against the union, a breach that involves the Plaintiffs claim on appeal that the union vio-
local’s constitution and bylaws. In their com- lated section 101(a)(2) of the LMRDA.13 In
plaint, plaintiffs did not specify what state law support, they allege that the local union pres-
claims they were asserting, nor did they men- ident, Brent Petit, on hearing complaints about
tion any provision of state law in any of the the 2001 bump procedure, suggested that the
counts of the complaint. Additionally, they did complaints be brought in a different forum,
not respond to the portion of Cytec’s motion namely the Cytec group meetings, and “asked
for summary judgment asking for dismissal of Victoriano whether he wanted to file charges
the state law claims because they were vague, against Gilbeau, but warned that if those charg-
inadequately pled, or preempted by section 301 es were unwarranted, Victoriano would be
of the LMRA. Therefore, the state law claims kicked out of the union.”
against the union are waived for appeal pur-
poses.12 Plaintiffs reason that this constituted a threat
of reprisal for voicing complaints over the un-
Even assuming, arguendo, that the breach of ion’s behavior, or at least constituted “union
contract claims are not waived, the district conduct that inhibits or threatens dissenting
court did not err in finding that they are pre- speech,” which they claim is prohibited by sec-
empted by section 301 because they are “inex- tion 101(a)(2) of the LMRDA. In support they
tricably intertwined” with the CBA and hinge only cite a case from another circuit. Because
on an interpretation of the CBA. The only case they have not raised this LMRDA claim in their
plaintiffs cite in support is from another juris- complaint or before the district court, it is
diction and is inapposite. Although Korzen v. waived: In their amended complaint, plaintiffs
Local Union 705, Int’l Bhd. of Teamsters, 75 allege jurisdiction pursuant to the LMRDA, but
F.3d 285, 289 (7th Cir. 1996), which they rely they do not cite any specific provision of the
on, held that claims for a violation of a local’s LMRDA that was violated, nor do they refer-
ence the LMRDA anywhere other than in the
12
Little v. Liquid Air Corp., 37 F.3d 1069, 1071
13
n.1 (5th Cir. 1994) (en banc) (explaining that we Labor-Management Reporting and Disclosure
will not consider arguments not presented to the dis- Act of 1959 (“LMRDA”), Pub. L. 86-257, 73 Stat.
trict court). 522, § 101(a)(2), 29 U.S.C. § 411(a)(2).
7
jurisdictional statement. They do not even amounted to “threats of reprisal.”16
mention the alleged incident or any other inci-
dent involving “threats” of reprisal for voicing The judgment is AFFIRMED.
concerns. Further, they have not specifically
alleged any violation of § 101(a)(2) of the
LMRDA and have not devoted any section or
portion of their memorandum opposing the
motion for summary judgment to describing
their LMRDA claims or to briefing the district
court on why summary judgment was inappro-
priate on those claims.14
For the same reasons, we also reject plain-
tiffs’ argument that the union violated the
LMRDA when Petit “chose to ignore Victori-
ano’s pleas and stifled any other complaints
with threats of reprisals.”15 Although in the
paragraph making this statement, plaintiffs de-
scribe that Petit denied that he received a re-
quest for a meeting signed by ninety-two union
members, we do not understand how the state-
ment that he had not received a petition
14
Plaintiffs mentioned, in their memorandum
opposing the motion for summary judgment, that
Petit told Victoriano that if unsubstantiated charges
were brought against Gilbeau, the charger faced
exclusion from the union. This was described in a
section labeled “Victoriano’s Grievance.” But,
plaintiffs never alleged that this act constituted a
violation of the LMRDA, or briefed the district
court on any law that would suggest that this is a
violation of the LMRDA. Therefore, the issue of
why these alleged threats violate § 101(2) of the
16
LMRDA is waived for appeal purposes. See Little, In the remainder of the section of their brief
37 F.3d at 1071 (explaining that we will not dedicated to the LMRDA, plaintiffs refer to events
consider arguments not presented to the district that they allege demonstrate “inaction” and “arbi-
court). trary conduct” toward their grievances. They do not
brief us, however, on why this would be a violation
15
This argument is also unsupported by the rec- of the LMRDA as opposed to a mere breach of the
ord. There is no evidence that anyone other than duty of fair representation. Even if these claims did
Victoriano was allegedly threatened with reprisal, state a claim for a violation of the LMRDA, they
and plaintiffs’ brief does not cite to the record in would be waived because they were not properly
support of this statement. before the district court, as we have explained.
8