Opinion
No. 99 C 3524
April 26, 2000
MEMORANDUM OPINION AND ORDER
Plaintiffs, twenty-four current or former members of Local 703 of the International Brotherhood of Teamsters ("Local 703") sue Dominick's Finer Foods ("Dominick's"), Mike Leitner, Mayo Leasing Inc. ("Mayo"), and five current or former members of Local 703's Executive Board ("the union board") for violations of the Labor Management Relations Act, 29 U.S.C. § 141 et seq. On July 12, 1999, plaintiff's voluntarily dismissed defendants Leitner and Mayo. In its October 7, 1999 order, this court dismissed all claims that accrued prior to November 27, 1998. Dominick's moved for summary judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1 on January 12, 2000 and the union board moved for summary judgment on January 19, 2000. Plaintiffs were ordered to respond to Dominick's motion by February 1, 2000 and to the union board's motion by February 8, 2000. They were granted an extension to file their response to Dominick's motion until February 8, 2000. Plaintiffs failed to respond or timely request another extension to do so. On February 24, 2000, this court granted defendants' unopposed motions for summary judgment and entered judgment against plaintiffs. On February 23, 2000, plaintiffs filed a motion for leave to file their responses to defendants' motions for summary judgment instanter. On February 29. 2000, this court considered plaintiffs' motion as a motion to reconsider the summary judgment order entered February 24, 2000. On March 2, 2000, plaintiffs filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60 (b).
BACKGROUND
I The parties
All facts are undisputed unless otherwise noted. Plaintiffs are current or former truck drivers employed by Dominick's, or formerly employed by Mayo, at Dominick's Northlake, Illinois facility. Plaintiffs generally rank in the group of drivers who have the most seniority at Dominick's Northiake facility. Local 703 represents plaintiffs and other employees at the Northlake facility. The union board is the governing body of Local 703. Defendants Thomas W. Stiede, Robert Poore, Chuck Murdoch, John Cobb, and Keith Lloyd are current or former members of the union board. Since 1987, plaintiffs' employment at Dominick's has been governed by a collective bargaining agreement. The bargaining agreement provides that all grievances are to be processed through meetings between Local 703 and Dominick's and further provides for final and binding arbitration of unresolved grievances.
II Plaintiff's allegations regarding seniority and overtime
The bargaining agreement's provisions governing seniority and overtime are longstanding and were in place well prior to November 27, 1998. In 1993, Local 703 held an election and new union leadership was selected. The new union board leadership, some of whom are the current defendants, interpreted the bargaining agreement's seniority and overtime provisions differently than the former regime. In essence, the new leadership changed the methods used for assignment of various overtime opportunities. Specifically, the union board changed the policies regarding the assignment of Saturday work, Sunday work, drop loads, shift start times, and Thanksgiving work. It also adopted "shift seniority" and abandoned "master seniority" for certain overtime assignments. Plaintiffs became aware of the union board's interpretation of the seniority and overtime policies well before November 27, 1998. Plaintiffs disagreed with the union board's interpretation of the agreement's seniority and overtime policies and have consistently complained. Plaintiffs contend that defendants violated their seniority rights under the agreement by giving overtime opportunities to less senior drivers and have filed grievances accordingly. They assert the union board has arbitrarily denied or failed to act upon the grievances and has failed to stop the seniority violations.
A Plaintiff's complaints filed before November 27, 1998
Plaintiff Lonzia Casteel, on behalf of himself and other senior drivers, complained about the union defendants' interpretation repeatedly in 1995 and 1996. These complaints included a letter sent to Local 703, a complaint with the Illinois Department of Labor, a charge filed with the National Labor Relations Board ("NLRB"), and a charge of discrimination filed with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). Similarly, other plaintiffs filed multiple grievances with Local 703 in 1997 and 1998 complaining of various other violations. These alleged violations included; improper assignment of Saturday and Sunday work by seniority, favoritism in assigning drops, loads not assigned according to seniority, and employees working illegal shifts in violation of the agreement. Local 703 either denied or took no action on all grievances filed by plaintiffs. None of these complaints were made after November 27, 1998 and all claims based on them were dismissed in the court's October 7, 1999 order.
B Bailey's December 1998 grievance
On December 1, 1998, plaintiff Warren Bailey forwarded a grievance to the union board. The grievance alleged Bailey was denied Sunday work on November 22, 1998, while drivers with less seniority were allowed to work. The union board took no action regarding Bailey's grievance. Bailey has raised similar complaints regarding Sunday work with Local 703 in the past, including at least one in late 1997 or early 1998 and others as early as 1988. Compl. ¶ 80; Bailey deposition pp. 10, 15, 50. He routinely talked about the policy regarding Sunday work with other drivers and acknowledges the union board's interpretation of the bargaining agreement's seniority provisions has been common knowledge for years. Plaintiffs contend the violation alleged in Bailey's December 1, 1998 complaint is an example of a continuing policy where defendants prohibit them from working on Sunday, allegedly because of excess hours, but allow drivers with less seniority with excess hours to work in violation of the bargaining agreement.
III Bailey's medical claim
Bailey further alleges the union board deliberately delayed payment on a legitimate medical expense that led to a notice from a collections agency and a negative mark on his credit rating. On December 12 and 17, 1996, Bailey's wife incurred medical expenses. She received additional services in January and April 1997. The doctor submitted his charges for reimbursement to the Chicago Area International Brotherhood of Teamsters Health and Welfare Trust Fund ("the health fund"). The health fund paid for all Stevens' services, but payment for the April 1997 services was not made until January 16, 1998. On September 1, 1998, Bailey received a notice for $110.00 from a collection agency regarding the services provided to his wife. Neither the fund nor the union board had anything to do with the collection notice. After Bailey received the collection notice, he never heard anything else about the collection notice or the medical bills and assumed the bills had been paid. The union board was not involved in the payment of Bailey's medical claims.
The health fund administers employee reimbursements for medical expenses. Pursuant to the agreement, Dominick's makes monthly contributions to the health fund for coverage of employees health expenses. Neither Dominick's nor Mayo controls employee reimbursements from the health fund. Bailey's complaint regarding reimbursement for medical expenses is not an allegation against or involving Dominick's.
IV Stevens' medical claim
On July 15, 1997, plaintiff Thomas Stevens suffered a workers compensation injury to his back and was off work for a substantial period of time. The bargaining agreement provides for an injured employee's company paid health benefits to continue for ten months after his injury. On June 4, 1998, the health fund informed Stevens his company paid benefits were about to expire and sent him a COBRA continuation notice. Under the COBRA continuation plan, he could have continued his health benefits at his own expense for $472.57 a month. Stevens never paid his COBRA continuation contribution. Stevens returned to work on June 22, 1998. Upon his return to work, Dominick's informed the health fund and paid Stevens' June contribution. However, as a result of Steven's failure to pay his COBRA continuation contribution, there was a lapse in his health insurance coverage from June 1 through June 21, 1998. Due to the lapse in coverage, Steven was subject to the health fund's preexisting illness condition. The condition limited reimbursement to $500 for any claim arising from an illness preexisting for one year. Neither Steven nor his dependants had claims rejected as a result of this condition. The COBRA continuation policy of the health fund was applied to Stevens in the same manner it is applied to all employees who lose eligibility for employer paid contributions to the health fund. The lapse in Stevens' medical coverage had no effect upon his employment and he kept his original seniority date.
The health fund administers employee reimbursements for medical expenses. Neither Dominick's nor Mayo controls employee reimbursements from the health fund. Pursuant to the agreement, Dominick's makes monthly contributions to the health fund for coverage of employees health expenses. Dominick's and Mayo made all contractually required contributions to the health fund on Stevens' behalf.
IV Froberg's and Brestan's pension claims
Plaintiffs Vincent Froberg and Thomas Brestan claim members of the union board told them, prior to retirement, that their pensions would be increased by any annual pension increase awarded to retirees within twelve months after retirement. Froberg retired in April 1998. Brestan applied for a disability pension in May 1998 and was awarded his pension benefit November 19, 1998. On April 27, 1999, the trustees of the pension fun awarded Brestan a disability pension retroactive to December 1, 1998. In December 1998, pensions were increased effective January 1999, but were not retroactive to anyone who retired in 1998. As a result, neither Froberg or Brestan received increases in their pensions despite the 1999 increases.
The bargaining agreement requires employers to contribute to the Chicago Area International Brotherhood of Teamsters Pension Trust Fund ("the pension fund"). Pursuant to the bargaining agreement, the pension fund provides a defined benefit pension to eligible retirees. The pension benefits are administered by the pension fund, not by the union board. The bargaining agreement does not establish the level of benefits. The level of benefits to be paid to the retirees is established by the pension fund trustees. In 1993, 1996 and 1997, the pension fund trustees voted to increase pension benefit levels and to make the increase retroactive to January 1 of each respective year. In December 1998, the pension fund trustees voted to increase pensions but did not make the increase retroactive for anyone who retired in 1998. This decision was totally within the discretion of the pension fund trustees. At the time Froberg retired, he knew that the amount of the pension plan benefits and any increases in them were within the discretion of the pension fund trustees. On February 5, 1999, Froberg sent a letter to the pension fund trustees protesting their failure to make the January 1999 increase retroactive to cover his retirement. The pension fund's counsel responded to the letter and informed Froberg that the pension fund trustees had sole discretion whether to make benefit increases retroactive and informed him of his right to appeal the pension fund's decision. Froberg did not appeal.
The pension fund administers the employee pension benefits. Pursuant to the bargaining agreement, Mayo made all required monthly contributions to the pension fund on behalf of Froberg and Brestan. Neither Dominick's nor Mayo controls the pension fund or employee benefits from the fund. Neither Froberg nor Brestan ever discussed their pension benefits with anyone from Dominick's or Mayo.
DISCUSSION
I Motion for reconsideration
Motions for reconsideration serve a limited purpose. On reconsideration, a party may not introduce new evidence or legal theories that could have been presented earlier. Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Nevertheless, the federal rules allow a court to relieve a party from a final judgment or order for "mistake, inadvertence, surprise or excusable neglect" or "any other reason justifying relief from the operation of the judgment." Fed R. Civ. P. 60(b). Ultimately, a district court may grant a motion to reconsider so long as the court does not abuse its discretion. In the Matter of Prince, 35 F.3d 314, 324 (7th Cir. 1996).
This court granted defendants' motions for summary judgment because they were unopposed on February 24, 2000. However, plaintiffs filed a motion for leave to file their responses to defendants' motions for summary judgment on February 23, 2000, more than two weeks after the deadline. In the motion, plaintiffs' counsel explained that he had been unable to work since the week of January 31, 2000 due to a serious arm and shoulder injury. Counsel explained that due to the pain and his medication, he had been unable to sleep more than a few hours a night and unable to work for more than a few hours a day from January 31 until the end of February 2000. On February 29, 2000, the court agreed to treat plaintiffs' motion as a motion to reconsider the summary judgment order on its merits. Still, plaintiffs failed to file their response on February 29, 2000 and did not submit their joint response to the defendants' motions until March 2, 2000, when they filed their motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). Nevertheless, entering summary judgment without addressing the merits of plaintiffs' response would be unwarranted under these circumstances. Accordingly, the court considers the merits of plaintiffs' response.
II Legal standard
A Summary judgment
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993).
B LMRA § 301 hybrid action
Plaintiffs bring a hybrid action under § 301of the LMRA, 29 U.S.C. § 185. A hybrid suit is one where a plaintiff sues his employer for breaching the collective bargaining agreement and his union for breaching its duty of fair representation. Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir. 1997). In a hybrid suit, the employee's claim against the union and his claim against the employer are interlocked: neither claim is viable if the other fails.Id. Thus, in order for plaintiffs to maintain an action against their employer under § 301, they must first establish that the union breached its duty of fair representation in processing their grievances. United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 62 (1981); Crider, 130 F.3d at 1241. Similarly, if there is no violation of the bargaining agreement, the union cannot be liable for breach of its duty of fair representation under § 301. Id. A unions' power to exclusively represent all employees in employment disputes entails "a concomitant duty of fair representation to each of its members."Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994). The duty requires a union to represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collective bargaining agreement. International Bhd. of Elect. Workers v. Foust, 442 U.S. 42, 47 (1979). A union breaches its duty of fair representation if its actions are either "arbitrary, discriminatory, or in bad faith." Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991). "Arbitrary," "discriminatory," and "bad faith" are three separate parts of the fair representation determination and each must be analyzed individually. Crider, 130 F.3d at 1243. Hybrid § 301 claims are subject to a six-month statute of limitations. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983). The limitations period begins to run "when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation." Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 913 (7th Cir. 1999).
II Plaintiffs' § 301 claims
Plaintiffs claim Dominick's and the union board violated the bargaining agreement's seniority provisions in regards to overtime, Saturday work, Sunday work, drop loads, shift start times, and Thanksgiving work. They claim the union board violated its duty of fair representation by ignoring or arbitrarily rejecting plaintiffs' grievances concerning violations of their seniority priority rights under the bargaining agreement. Plaintiffs allege they have repeatedly complained about the various seniority violations but the union board arbitrarily denied or ignored all of their complaints. In essence, plaintiffs disagree with the interpretations of the bargaining agreement's seniority and overtime provisions adopted by the new union board leadership who took control of the union after the 1993 election.
A Seniority and overtime violations
This court dismissed the majority of plaintiffs' seniority and overtime allegations in its October 7, 1999 order dismissing all claims prior to November 27, 1998. Under DelCostello, hybrid claims are subject to a six-month statute of limitations. DelCostello, 462 U.S. 151. The plaintiffs filed their complaint on May 27, 1999. Therefore, any alleged violations of the union board's duty of fair representation that occurred before November 27, 1998 are time barred and this court dismissed them accordingly.
Plaintiffs claim all their allegations are timely because the union board's interpretation of the bargaining agreement and the continued denial of plaintiffs seniority rights pursuant amounts to a continuing violation. This argument was previously rejected by this court in ruling on the union board's motion to dismiss. Plaintiffs have produced no evidence to call this conclusion into doubt and their response brief essentially rehashes the same arguments made on the motion to dismiss. As this court explained in the October 7, 1999 order, violation of plaintiffs' seniority rights and the union board's failure to fairly represent the plaintiffs in vindicating those rights are two different issues. A fair representation claim against the union board is based on plaintiffs complaining to the board, and the board either improperly denying or ignoring the complaints. The fact that seniority violations may continue during the limitations period is irrelevant. "An untimely . . . suit cannot be revived by pointing to effects within the limitations period of unlawful acts that occurred earlier."Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997).
To establish a violation, plaintiffs must show that the union board violated its duty of fair representation during the limitations period. It is not enough to show that the union board refused to act on plaintiffs' complaints prior to November 27, 1998 and continued to do so since. "As the cases in this circuit make clear, continued union inactivity after an initial failure to respond to a grievance request does not constitute a continuing violation of the duty of fair representation." Adams v. Budd Co., 846 F.2d 428, 431 (7th Cir. 1988). Accordingly, none of plaintiffs complaints made prior to November 27, 1998 can support their fair representation claim. Furthermore, if plaintiffs fair representation claim is based on the union board's interpretation of the bargaining agreement instead of its failure to respond to plaintiffs complaints, the claim is still barred by the statute of limitations. The record reveals the plaintiffs were aware of the union board's interpretation of the bargaining agreement's seniority and overtime provisions well before November 27, 1998. Plaintiffs' awareness of the union board's interpretation is apparent from plaintiffs' repeated complaints about the various alleged violations. Clearly, plaintiffs' were aware of the union board's interpretation of the bargaining agreement well before the limitations period, therefore, any claims based on the union board's actual interpretation of the contract is also time barred.
The Supreme Court has emphasized the importance of expeditious resolution of hybrid claims under § 301. DelCostello, 462 U.S. 151. The plaintiffs have been fighting with the union board over the proper interpretation of the bargaining agreement's seniority provisions for years. The union board's current policies regarding Sunday work and other overtime has been common knowledge at Dominick's for a long time. The plaintiffs have repeatedly complained about them and these complaints have either been denied or ignored. Plaintiffs have been aware that the union board did not intend to change its interpretation and was not going to act on their grievances before November 28, 1998. In short, the proper time for them to sue over these disagreements has passed.
Plaintiffs' only allegations that potentially fall within the limitations period are Bailey's December 1, 1998 complaint regarding Sunday work, Bailey's and Stevens' claims regarding their medical expenses, and Froberg's and Brestan's claims regarding their pension benefits.
B Bailey's December 1, 1998 complaint
On December 1, 1998, plaintiff Warren Bailey forwarded a grievance to the union board. The grievance alleged Bailey was denied Sunday work on November 22, 1998, while drivers with less seniority were allowed to work. Bailey's grievance was made within the limitations period. However, Bailey's grievance is in essence a complaint about the union board's interpretation of the bargaining agreement. The issue of the union board's interpretation of the seniority provisions of the bargaining agreement has been common knowledge since it transpired in 1995 and 1996. It is undisputed Bailey raised similar complaints regarding Sunday work with Local 703 in the past, including at least one in late 1997 or early 1998, and others as early as 1988. He routinely talked about the policy regarding Sunday work with other drivers, and admits that the union board's interpretation of the bargaining agreement's seniority provisions has been common knowledge for years. In short, Bailey's December 1, 1998 complaint is essentially just a repeat of many other protests against the union board's well known interpretation of the bargaining agreement's seniority and overtime provisions.
A fair representation claim accrues, and the limitations period begins, when the plaintiff knew or should have known of the acts constituting the alleged violation. Christiansen, 178 F.3d at 913; Metz v. Tootsie Roll Industries Inc., 715 F.2d 299, 304 (7th Cir. 1983). A union's continued failure to respond to a complaint does not bring a claim within the limitations period. "Continued union inactivity after an initial failure to respond to a grievance request does not constitute a continuing violation of the duty of fair representation." Adams, 846 F.2d at 431. Similarly, there is no continuing violation sufficient to delay the statute of limitations if the conduct within the six month period is only unlawful in light of conduct which occurred outside of the six month period. Christiansen, 178 F.3d at 916.
The conduct Bailey is complaining about arose from actions taken by the union board in interpreting the bargaining agreement well before the limitations period began to run. At the latest, Bailey was aware of the union board's Sunday work policy and interpretation of the bargaining agreement's seniority provisions in late 1997 or early 1998 when he filed a similar complaint. The parties dispute whether the union board denied or ignored his late 1997 or early 1998 complaint. However, even if the union board failed to respond, Bailey still should have been aware of his claim after almost a year had passed and nothing had been done. Bailey's filing of a similar grievance in December 1998 did not restart the limitations period. The union board's refusal to respond to Bailey's December 1998 grievance is essentially a continuation of its denial of similar claims and its refusal to change its interpretation of the bargaining agreement. Furthermore, the union board's refusal to respond to Bailey's grievance is only unlawful if its longstanding interpretation of the seniority provisions violate the bargaining agreement. it is well established this is not sufficient to bring the conduct within the limitations period. See Christiansen, 178 F.3d at 916; Adams, 846 F.2d at 431 (limitations period began when plaintiff should have known union did not intend to take further action regarding employer's failure to hire plaintiff, not each time employer subsequently refused plaintiff employment); Adams v. General Motors Corp., 145 L.R.R.M. 2361 (N.D.Ind. 1992), 1992 WL 567312 (limitations period began when members learned of new agreement adversely affecting their seniority, not when their reduced seniority rights later actually affected them); Gorodkin v. O-Co., 143 L.R.R.M. 2092 (S.D.N.Y. 1992), 1992 WL 122769 (focus is on time of challenged act, not its consequences) Thus, plaintiffs' allegations regarding Bailey's December 1, 1998 complaint are time barred and summary judgment was properly granted.
C Bailey's and Stevens' medical expenses
Plaintiffs claim the union board somehow violated its duty of fair representation when Bailey received a collection notice for an unpaid medical bill supposedly covered by his health insurance. Plaintiffs also claim the union board violated its duty of fair representation by demanding that Stevens reimburse the union for a certain sum connected with his medical leave. The record does not support either conclusion.
Plaintiffs fail to present any evidence suggesting the union board violated its duty of fair representation. The union board has the duty to fairly represent all employees in the negotiation, administration, and enforcement of the collective bargaining agreement. International Bhd. of Elect. Workers v. Foust, 442 U.S. 42, 47 (1979). However, a duty is only owed as to matters which fall within the union's exclusive control. Toth v. USX Corp., 693 F. Supp. 693, 700 (N.D.Ill. 1988) (citing Freeman v. Local Union No. 135 Chauffeurs, Teamsters, Warehousemen and Helpers, 746 F.2d 1316, 1321 (7th Cir. 1984). It is undisputed that the health fund, not the union board, administers employee reimbursements for medical expenses pursuant to the bargaining agreement. All of Bailey's medical claims were processed and paid by the health fund without any assistance, or interference, by the union board. Furthermore, neither the fund nor the union board had anything to do with the collection notice. Similarly, it is undisputed the health fund applied its COBRA continuation policy to Stevens in the same manner it was applied to all employees. Moreover, the lapse in Stevens' medical coverage had no effect upon his employment and he had no benefit claims denied as a result of the pre-existing illness exception. Plaintiffs have failed to present any evidence supporting a nexus between the alleged wrongdoing and the union board's duty of fair representation.
Plaintiffs also fail to present any evidence that suggests the bargaining agreement was violated in either incident. It is undisputed that Dominick's does not control the health fund or disbursements from the fund. The bargaining agreement only requires that Dominick's make monthly contributions to the health fund for all employees. It is undisputed Dominick's made all required contributions to the health fund on behalf of Bailey and Stevens. In short, Dominick's has met all its obligations under the bargaining agreement. Thus, plaintiffs cannot prove that Dominick's breached the bargaining agreement and their claims fail.Crider, 130 F.3d at 1241. Accordingly, summary judgment was properly granted on plaintiffs' allegations regarding Bailey's and Stevens' medical expenses.
D Froberg's and Brestan's pension benefits
Froberg and Brestan allege the union board promised them that they would receive any increase made in the pension benefit amount for twelve months after they retired. Plaintiffs conclude that the union board violated its duty of fair representation when the January 1999 pension increase was not made retroactive.
Plaintiffs fail to present evidence that supports the conclusion the union board violated its duty of fair representation. Under the bargaining agreement, employee pension benefits are administered by the pension fund, not by the union board. The level of benefits, and whether to make any increases retroactive, is determined by the pension fund trustees. The pension fund trustees are made up of an equal number of management and labor representatives. In December 1998, the pension fund trustees voted to increase the benefit level in January 1999, but decided not to make the increase retroactive. It is undisputed than the union board did not have control over this decision. Pension benefit levels are determined by the bargaining agreement and are not negotiated by the union. Only the amount of employer contributions to the pension fund are negotiated under the bargaining agreement. In short, the union board did not violate its duty of fair representation because the decision whether to make the employee pension benefit increase retroactive was not under its control. Toth, 693 F. Supp. at 700.
It is worth noting that plaintiffs do not allege that the union board failed to act on a grievance or investigate a complaint made pursuant to their pension benefits. Instead, plaintiffs claim the duty of fair representation was violated. However, neither Froberg nor Brestan complained to the union board regarding the pension benefit increase. As discussed above, this decision was solely that of the pension fund trustees. Froberg knew that these decisions were made by the pension fund trustees. In February 1999, he sent a letter to the pension fund trustees protesting the decision. The pension fund responded by denying his request to reconsider the decision and informed him of his right to appeal. Yet, Froberg did not appeal. Froberg's and Brestan's disagreement with the pension fund trustees' decision not to make the pension fund increase retroactive does not involve the union board and does not implicate its duty of fair representation.
Plaintiffs fail to present evidence that suggests Dominick's violated the bargaining agreement. The bargaining agreement only requires that the signatory employers make contributions to the pension fund. Mayo made monthly contributions to the pension fund on behalf of employees as required under the bargaining agreement. It is undisputed that Dominick's does not control disbursements from the pension fund and that nobody from Dominick's or Mayo made any promise of increased pension benefits to Froberg or Brestan. Furthermore, neither Froberg nor Brestan were ever employed directly by Dominick's. It is clear Froberg and Brestan cannot prove that Dominick's breached the bargaining agreement, therefore, their claims fail. Crider, 130 F.3d at 1241. Accordingly, summary judgment was properly granted on plaintiffs' allegations regarding Froberg's and Brestan's pension benefits.
E Plaintiffs with unspecified claims
Fourteen of the named plaintiffs do not allege any specific grievances. The complaint only states that the union board's interpretation of the bargaining agreement's seniority provisions affected "all the named plaintiffs." Compl. ¶¶ 66, 73, 75, 77, 79, 88-89, 92. Since none of the seniority and overtime allegations fall within the limitations period, summary judgment was properly granted on all of the unspecified claims.
CONCLUSION
Plaintiffs fail to present sufficient evidence to survive summary judgment on any of their allegations. Plaintiffs' motion for relief from judgment is denied.
ENTER.