APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 78-1414)
Before Hunter, Van Dusen and Weis, Circuit Judges.
In No. 81-1356, the appellant Michael Riley, the plaintiff below, appeals from a final order of the district court filed April 14, 1980, granting summary judgment to the defendants, Letter Carriers Local No. 380 and the National Association of Letter Carriers (hereinafter "Unions"); and from a final order filed January 14, 1981, granting summary judgment to the defendant, United States Postal Service, based on the statute of limitations. In No. 81-1505, cross-appellant United States Postal Service, a defendant below, appeals from an order of the district court, also filed April 14, 1980, denying its motion for summary judgment based on the substantive issue. This court has jurisdiction under 28 U.S.C. § 1291.*fn1
We will affirm in No. 81-1356. Because of our resolution of this appeal, the cross-appeal in No. 81-1505 will be dismissed as moot.
Beginning in August 1970 Riley was employed as a part-time letter carrier by the defendant, United States Postal Service (USPS), at its Trenton, New Jersey, facility. He was represented for collective bargaining purposes by the defendant unions. On May 5, 1972, Riley was arrested, and was thereafter indicted, for an offense for which a term of imprisonment could be imposed. Under the provisions of the collective bargaining agreement, this constituted grounds for immediate discharge.*fn2 On May 11, 1972, Riley was informed by letter that he would be discharged effective May 12, 1972. Later on May 11, Riley contacted his Local Union president, Lenihan, and the two met with USPS representative Masterson. Riley asserts, and the district court presumed for purposes of this summary judgment motion,*fn3 that Lenihan and Masterson agreed to hold the grievance in "abeyance" until the criminal charges were determined. Riley subsequently notified USPS that he would pursue his grievance under the collective bargaining agreement, rather than under the Veterans' Preference Act.*fn4 This letter was acknowledged on May 18, 1972, in a letter from USPS representative Schiller which stated that "the grievance appeal dated May 16, 1972" was denied. Riley then showed this letter to Lenihan who, Riley asserts, assured him that he was protected by the "abeyance agreement." On June 13, 1972, Riley received an official notice of termination from USPS. He again went to Lenihan, who took no action, purportedly in reliance upon the abeyance agreement.
In the summer of 1974, the criminal charges against Riley were dropped. He contacted Lenihan, who reinstituted the grievance procedure. USPS denied the abeyance agreement and contended the grievance was untimely at each stage.*fn5 The union then prepared to take the matter to arbitration, but Riley chose instead to pursue his remedies under the Veterans' Preference Act. There again, his claims were rejected as untimely. Riley also filed unfair labor practice charges with the National Labor Relations Board, but the Regional Director declined to issue a complaint.
On January 5, 1978, Riley brought this action against the defendant unions in the New Jersey state court, alleging that they had breached their duty of fair representation in that they had "willfully, wantonly and recklessly" (count 1) and "negligently and carelessly" (count 2) failed to pursue available remedies on his behalf. On June 26, 1978, the defendant unions removed the case to the United States District Court. On October 31, 1978, Riley amended his complaint, naming the USPS as an additional defendant and alleging breach of the collective bargaining agreement and the abeyance agreement. All of the defendants then answered and moved for summary judgment.
On March 4, 1980, the district court granted the motion of the defendant unions, holding that, as a matter of law, the unions had not breached their duty of fair representation to Riley. At the same time, the court denied the motion of USPS on the ground that the breach of the abeyance agreement, if proved, would amount to a repudiation of the grievance procedure and thus would be actionable even absent a breach of the union's duty of fair representation. Riley v. Letter Carriers Local No. 380, 485 F. Supp. 980 (D.N.J.1980). In a subsequent opinion, the district court denied USPS's motion for reconsideration of its decision. Riley v. Letter Carriers Local No. 380, 493 F. Supp. 342 (D.N.J.1980).
On January 14, 1981, the district court, based upon its bench opinion of January 5, 1981 (167a-177a), granted USPS's motion for summary judgment, holding that the abeyance agreement was breached, if at all, by June 1972 and, therefore, that the six-year statute of limitations*fn6 on Riley's cause of action had run before the amended complaint was filed in October 1978.
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 without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 909, 17 L. Ed. 2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S. Ct. 363, 367, 11 L. Ed. 2d 370 (1964). As the Supreme Court held in Vaca, "(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." 386 U.S. at 190, 87 S. Ct. at 916. In 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...." Id. at 191, 87 S. Ct. at 917. While the application of the "perfunctory" standard has proven difficult over time, we have recently made clear that whatever it may mean in other circumstances, "(m)ere ineptitude or negligence in the presentation of a grievance by a union has almost uniformly been rejected as the type of conduct intended to be included within the term "perfunctory.' " Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 ...