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Hersh v. Allen Products Co.

April 30, 1986


On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 84-2862).

Author: Garth



GARTH, Circuit Judge:

Denise M. Hersh brought this action against her employer, Allen Products Company, Inc., d/b/a Alpo Pet Products ("Alpo") and Local 773 of the Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union") under section 301 of the Labor Management Relations Act, 29 U.S.C. ยง 158. In her complaint, Hersh alleged that her October 5, 1983 discharge by Alpo violated the terms of its collective bargaining agreement with the Union and that the Union breached its duty of fair representation owed Hersh by failing to process her grievance to arbitration pursuant to the grievance procedures established by the collective bargaining agreement. Alpo and the Union filed motions for summary judgment claiming that Hersh's cause of action was barred by the six-month statute of limitations prescribed by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983).*fn1 The two defendants also filed a counterclaim for attorney's fees against Hersh, alleging that Hersh's suit was frivolous and brought in bad faith.

The district court ruled that Hersh's claim was barred by the statute of limitations, and accordingly granted summary judgment in favor of Alpo and the Union on her section 301 and duty of fair representation claims. The district court ruled against Alpo and the Union on their attorney's fees counterclaim.

Hersh appealed from the district court's summary judgment order. No cross-appeal was filed by the defendants respecting their counterclaim. We reverse the district court's order granting summary judgment.


Denise Hersh was employed as a packing line operator by Alpo from June 28, 1977 to October 5, 1983. At all times pertinent to this litigation, a collective bargaining agreement containing detailed attendance and disciplinary provisions was in effect between Alpo and the Union, of which Hersh was a member. The terms of the agreement provided that employees were assessed a specific number of points for lateness or unauthorized absences. When an employee accumulated thirty five (35) or more points during a given twelve (12) month period, the employee was subject to disciplinary measures, including discharge. Employees were permitted to challenge the assessment of points through the grievance provisions of the agreement.

Hersh had accumulated 32 points by October 1983. On October 5, 1983, she was assessed seven (7) additional points for an October 3, 1983 absence thereby bringing her point total to 39, four points over the limit permitted by the agreement. Accordingly, she was notified on October 5 that she would be discharged. That same day, Hersh filed a grievance pursuant to the collective bargaining agreement alleging that she had been improperly discharged. Earlier in 1983, Hersh had filed similar grievances challenging the assessment of points against her by Alpo. As of October, 1983, these previous grievances had neither been processed nor resolved.

On October 19, 1983, all of Hersh's grievances were considered at a third step grievance meeting between Hersh and representatives of Alpo and the Union. During the meeting, the Union representative, Robert Seng, privately met with Hersh in the hallway. In the course of their discussion, Seng allegedly told Hersh that "it did not look like the Alpo representatives would change their mind [about her grievances and discharge]." (Hersh, Aff. [P]4; see Hersh Dep. 23-24).

At this point, the record becomes unclear as to what exactly transpired next. According to Alpo and the Union, Hersh received notice at the October 19 hallway meeting that Alpo had denied her grievances and that the Union had refused to process them through to arbitration. Hersh, on the other hand, contended that she received no notice on October 19 that her grievances had been denied and that she left the meeting believing her grievances were still pending. She also claimed that she affirmatively told the Union representative that she desired arbitration if she lost her grievances. Until she received a copy of the collective bargaining agreement from the Union in May 1984, Hersh claimed, she did not know that the time for arbitration had expired.

What is clear from the record, however, is that the Union filed no affidavits supporting the summary judgment motions and that neither the Union nor Alpo at any time provided Hersh with written notice of the denial of her grievances or of the Union's refusal to proceed to arbitration.

On June 12, 1984, Hersh filed the present action against Alpo and the Union. Both Alpo and the Union moved for summary judgment, arguing that Hersh's cause of action accrued on October 19, 1983 and was accordingly barred by the six-month limitations period established by DelCostello. As noted, the district court agreed with the statute of limitations argument, and granted summary ...

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