Attorneys Al Gordon O'Connell and Jill Ryan Convince Federal Judge to Dismiss DFR Suit as Time Barred

On April 3, 2017, U.S. District Judge George O'Toole dismissed as untimely a duty of fair representation charge that had been filed by a member against USW, Local 8751. The case, which was argued by Pyle Rome attorneys Al Gordon O'Connell and Jill Ryan on behalf of the Union, reiterates the requirement that a member must file such claims within six months of when he knew or should have known of the claim or see his claim dismissed.

The case related to the Union's refusal to schedule an arbitration hearing over the member's seniority grievance because the grievant did not produce any evidence of a contract violation. The member alleged that union officers repeatedly told him that the Union would arbitrate the case, but after a year, the grievant stopped talking to the Union and hired a lawyer. The lawyer wrote two letters to the Union - the second one raising concern about a fair representation claim and explicitly threatening to bring suit against the Union. Ironically, the Union's response to the lawyer's letter got lost in the mail, so neither the member nor his lawyer ever received the Union's response. The member then filed a claim in federal court alleging violation of the duty of fair representation based, in part, on the Union's lack of response. However, the member filed his claim six months and six days after the lawyer's second letter.

The Union filed several motions to dismiss the case arguing that the case was untimely because it was filed more than six months after the member knew or should have known about the claim. Judge O'Toole agreed, noting that the second letter from the member's lawyer established not only that he should have known about his potential claim but that he actually knew. The court thus dismissed the case.

The Union would have likely won the case in the end even without the time bar issue due to the Union's reasonable attempt to communicate its position to the member. But since unions have a broad range of latitude in making decisions about whether to arbitrate a member's grievance, a primary lesson to be drawn from the case is that prompt communication with a member about the status of his or her case is usually enough to satisfy the Union's duty of fair representation.