decided as amended december 13 1983.: November 29, 1983.
Appeal from the United States District Court for the Eastern District of Pennsylvania
Adams and A. Leon Higginbotham, Circuit Judges and Teitelbaum, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Mr. Harvey Jackson, a public employee, appeals a district court order granting the summary judgment motions filed by defendants Temple University of the Commonwealth System of Higher Education and Temple University Hospital ("Employer"), and Affiliate 1199(c) of the National Union of Hospital and Health Care Employees ("Union"). Appendix ("App.") 94A.
Mr. Jackson filed suit against the Employer and Union in the district court claiming that 42 U.S.C. § 1983 and 29 U.S.C. § 185 were violated because of the inherently biased hearing conducted by the Employer as to his allegedly wrongful discharge and because of the Union's refusal to bring his claim to arbitration. The district court granted summary judgment motions in favor of the defendant Union and defendant Employer and against Mr. Jackson on his claim under 29 U.S.C. § 185. The district court dismissed Mr. Jackson's claim brought under 42 U.S.C. § 1983.
Mr. Jackson argues that the district court erred in dismissing as untimely his claims under the National Labor Relations Act ("NLRA") 29 U.S.C. §§ 151, 185 and in dismissing his due process claim for failure to set forth facts sufficient to state a cause of action under 42 U.S.C. § 1983.
This case arose because Mr. Jackson was fired after he was found with a bag containing 8 operating room ("O.R.") scrub pants while allegedly attempting to steal them. App. 61A. His being found with pants is not alleged. Rather, his having stolen them is alleged. The Union, as the sole and exclusive bargaining representative of Mr. Jackson under the collective bargaining agreement, handled Mr. Jackson's grievance alleging that he was unjustly fired and the Union initiated a so-called "Step 3 grievance" which provided Mr. Jackson with a hearing wherein Mr. Jackson and his only witness testified. Id. 4A, 63 A. Following the hearing, the Employer denied the grievance.
The Union thereafter mailed to Mr. Jackson's home address a series of certified letters dated December 11, December 23, and December 29, 1981 stating that his grievance would "not be pursued to the arbitration step of the Grievance and Arbitration Procedure" provided in the collective bargaining agreement. See 65A-70A; 73A - 74A. However, Mr. Jackson never picked up any of these letters. The post office therefore returned the letters to the Union. Mr. Jackson denies that he ever received notice of the Union's decision not to proceed to arbitration at any time or by any means. It is admitted, however, that on April 23, 1982 Mr. Jackson's counsel had received and reviewed the above mentioned series of letters. App. 78A.
The issue which we must decide first is whether the district court erred in dismissing Mr. Jackson's claim that the Employer and Union violated his due process right guaranteed by 42 U.S.C. § 1983.
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .
As Chief Justice Burger stated in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982), "the ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights 'fairly attributable to the state? ' Id. at 2770, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 2754, 73 L. Ed. 2d 482 (1982).
In this case, plaintiff sued both the Employer and the Union. The district court found however that each defendant had different defenses which warranted the dismissal of ...