1

Since the filing of this lawsuit, General Motors LLC (“GM”) has been substituted as the

real party in interest in the place and stead of Defendant General Motors Corporation.

(11/16/10 Order, Doc. No. 12.)

 2Six of the original 17 Plaintiffs have agreed to dismiss their claims with prejudice.

(12/10/10 Order, Doc. No. 16.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANGELA DeMOTT, ET AL.,

Plaintiffs,

v.

UAW INTERNATIONAL UNION, ET AL.,

Defendants.

 /

Case No. 09-10180

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS OR FOR

SUMMARY JUDGMENT [17, 19] 

Plaintiffs’ complaint asserts a classic hybrid Section 301 claim alleging that Defendant

General Motors Corporation (“GM”)1

 violated Plaintiffs’2 rights created in the 2003 GM/UAW

National Collective Bargaining Agreement (“National CBA”) and that Defendant UAW

International Union (“UAW”) breached its duty of fair representation by failing to enforce the

National CBA. See § 301 of the Labor Management Relations Act of 1947, as amended,

29 U.S.C. § 185. This lawsuit is Plaintiffs’ second attempt to litigate their hybrid § 301 claim

against GM and the UAW arising from Defendants' conclusion that Plaintiffs and other

former Delphi employees had been mistakenly placed at GM’s Flint Truck plant out of order

and ahead of existing GM hourly employees with superior contractual rights. As a

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2

contractual remedy, Defendants GM and the UAW agreed to provide all of the displaced

employees the option to either transfer to GM’s Pontiac Truck plant or to return to Delphi.

Plaintiffs’ initial lawsuit, Case No. 07-12648, was dismissed without prejudice because

Plaintiffs’ amended complaint conclusively established that they had not alleged facts

excusing them from failing to exhaust their contractual and/or intra-union remedies. (Def.

GM’s Mot., Ex. 2, 12/06/07 Opin. & Order at 2.) Plaintiffs subsequently filed this lawsuit on

January 15, 2009. 

This matter is now before the Court on Defendants’ motions to dismiss or for summary

judgment arguing that (1) Plaintiffs failed to exhaust their contractual and/or intra-union

remedies before they filed this second lawsuit, and (2) Plaintiffs’ § 301 claims are timebarred by the applicable six-month statute of limitations. For the reasons stated below,

Defendants’ motions are GRANTED.

I. Facts

A. Plaintiffs Placement Into and Transfer From GM’s Flint Truck Plant

Prior to Plaintiffs’ employment with GM in late 2006 and early 2007, they were

employed by Delphi in Saginaw, Michigan. (Compl., ¶ 11.) As a result of an agreement

reached in 2006 between the UAW, GM, and Delphi, Plaintiffs were given the opportunity

to terminate their employment with Delphi – which had filed a bankruptcy petition in 2005

– and become GM employees. (Id. at ¶¶ 12-14.) Specifically, on March 22, 2006, GM,

Delphi and the UAW entered into a Special Attrition Program that afforded Plaintiffs an

opportunity to fill openings for employment with GM. Plaintiffs accepted the offer and were

assigned by GM to its Flint Truck plant between November 2006 and January 2007. (Id.

at ¶¶ 2, 14.) Once hired by GM, Plaintiffs were represented by the UAW and were entitled

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 3

Dawn Godi, Ashley Hilton, Christine Mendyk also fall into this group but are no longer

Plaintiffs in this lawsuit. (12/10/10 Order, Doc. No. 16.)

 4

Shelly Keathly, Diane Michelin, and Kevin Murry also fall within this group but are no

longer Plaintiffs. (12/10/10 Order, Doc. No. 16.)

3

to all benefits under the 2003 GM-UAW National CBA. (Id. at ¶¶ 10, 16.) The GM hourly

employees at Flint Truck are represented by UAW Local 598 (“Local 598"). 

After Plaintiffs began working at GM’s Flint Truck plant, several existing GM

employees who had applications pending for Flint Truck claimed they had greater

contractual rights to Plaintiffs’ positions. After investigating their claims, GM and the UAW

jointly concluded that Plaintiffs and other former Delphi employees had been mistakenly

placed at the Flint Truck plant out of order and ahead of existing GM hourly employees with

superior contractual rights. (Def. UAW’s Mot., Ex. C, Koscinski Decl., ¶ 4; Def. GM Mot.,

Ex. 11, Koscinski 4/28/08 letter to Pl. DeMott.) GM employees with greater rights under

the National CBA were given the opportunity to displace Plaintiffs and other former-Delphi

employees beginning on July 16, 2007. In order to provide Plaintiffs and other displaced

employees an opportunity to continue their GM employment, GM and the UAW agreed to

provide all of the displaced employees with the option to either transfer to GM’s Pontiac

Truck plant or to return to Delphi. Sixteen of the affected employees chose to return to

Delphi and were placed in Delphi plants located in Flint and Saginaw, including Plaintiffs

Angela DeMott, Matt Heimberger, and Christine Mendyk.3

 (Compl., ¶ 36.) The remainder

chose to continue their employment with GM at the Pontiac Truck plant, including Plaintiffs

Michelle Scott, Gerald Gottleber, Luke Grappin, Kevin Murry, Lisa Kirk, Kenneth Kurlinski,

Patricia Moreau, Aaron Sandler, and Michael Smith.4 (Compl., ¶ 37.) 

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4

B. Plaintiffs’ First Lawsuit

On June 21, 2007, Plaintiffs (including eight individuals not Plaintiffs in this action) filed

their first lawsuit against GM, the UAW, and Local 598 alleging, inter alia, a hybrid § 301

breach of contract/breach of duty of fair representation claim as well as allegations that it

was futile for Plaintiffs to exhaust their contractual and internal union remedies prior to filing

their lawsuit. (Def. GM's Mot., Ex. 1, Pls.' Am. Compl.) Defendants filed motions to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that dismissal was

warranted because Plaintiffs had not exhausted their contractual and/or intra-union

remedies prior to filing suit and could not show that grounds exist to excuse their failure to

exhaust. This Court agreed with Defendants, granted their motions to dismiss, and

dismissed Plaintiffs claims without prejudice. (12/06/07 Opin. & Order, Doc. No. 14.) 

C. National CBA's Grievance and Appeal Procedures

It is undisputed that the National CBA at issue in this case contains a grievance and

arbitration procedure, that internal union appeal remedies are available under Article 33 of

the UAW's Constitution, and that Article 33 of the UAW Constitution requires all members

to complete the appeals process set out in that document before bringing a lawsuit.

(12/06/07 Opin. & Order, Doc. No. 14 at 5 (citing portions of the 2003 GM/UAW National

CBA and the UAW Constitution).) 

In their Complaint in this action, Plaintiffs concede that the National CBA includes a

grievance procedure for UAW members claiming that a contractual right was violated. If

not resolved at the local plant level, the grievance can be appealed to the UAW

International Union for review and processing. If the appeal is granted by the UAW’s

International Executive Board (“IEB”), or upon further appellate review by either the UAW’s

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5

Convention Appeals Committee (“CAC”) or the UAW’s Public Review Board (“PRB”), then

the grievance is reinstated into the grievance procedure for further processing. (Compl. at

¶¶ 29-33.)

D. Plaintiffs' Actions Following Dismissal of First Lawsuit

1. Plaintiff Angela DeMott

On December 13, 2007, seven days after the Court issued its Opinion and Order

dismissing Plaintiffs' First Lawsuit, Plaintiff Angela DeMott mailed a letter to Mark Hawkins,

the Chairman of Local 598. (Def. GM's Mot., Ex. 5, 12/13/07 ltr.) Her letter requested that

a "group grievance" be filed on behalf of DeMott and the other 22 individuals identified as

plaintiffs at the time Plaintiffs' First Lawsuit was dismissed. (Id.) It provided the language

to be included in the group grievance, listed the individuals to be included in the group

grievance, and asked that DeMott be notified "by mail as to when she could appear at

either the plant or the union hall to sign the grievance." (Id. at 1.) Only Plaintiff DeMott

signed the letter. (Id.)

On January 25, 2008, Plaintiff DeMott sent a letter to Ron Gettelfinger, the UAW's

President, asking him (1) to exercise his prerogative as International Union President and

waive the "technical" requirement that Plaintiff first appeal her "group grievance" to the

Local Union, (2) to order Chairperson Hawkins of Local 598 to write out her group

grievance and immediately process it to the International Union, and (3) to initiate an

appeal at the International Union level under Article 33 of the UAW's Constitution. Plaintiff

DeMott wrote to the UAW President because 41 days had passed and she had not been

contacted by anyone representing Local 598 and was thus convinced that the Local Union

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6

would "not honestly process" her group grievance and was deliberately delaying action on

that grievance. (Def. GM's Mot., Ex. 7, 1/25/08 DeMott ltr to Gettelfinger.) 

On January 30, 2008, Dave Curson, the Administrative Assistant to President

Gettelfinger, responded to Plaintiff DeMott's letter. He informed DeMott that Local 598 had

no authority to process a grievance on her behalf because she was currently a member of

Local 467 (Delphi Saginaw) and thus the UAW could not consider her January 25, 2008

attempt to perfect an appeal pursuant to Article 33 of the International Constitution. (Def.

GM's Mot., Ex. 7, 1/30/08 ltr. to DeMott.) 

On February 25, 2008, DeMott sent a letter to Chad Wurtzel, the Chairman of Local

467, on behalf of herself, Dawn Godi, and Ashley Hilton only, duplicating the information

contained in her December 13, 2008 letter to Local 598. (Def. GM's Mot., Ex. 8, 2/26/08

ltr. from DeMott to Wurtzel.) Only Plaintiff DeMott signed the letter. (Id.) 

On April 16, 2008, DeMott sent another letter to UAW President Gettelfinger asking

that an appeal be initiated under Article 33 of the International Constitution on her behalf

and on behalf of Godi, and Hilton based on "the refusal of the UAW, at the local and

regional levels, and the International level, to process a grievance for us that protests GM

removing us from our jobs at Flint Assembly." (Def. GM's Mot., Ex. 9, 4/16/08 ltr. from

DeMott to Gettelfinger.) Rather than providing information in it, DeMott's letter merely

referenced Plaintiffs' First Lawsuit and stated that a statement of facts supporting the

grievance had previously been submitted. (Id.) DeMott did explain that although she, Godi,

and Hilton were not currently GM employees, their grievance was with GM. (Id.) 

On April 24, 2008, Administrative Assistant Dave Curson responded to DeMott's letter

informing her that her appeal could not be processed because her letter did not meet the

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7

general requirements for submission of an appeal under Article 33, Section 4(a) of the

UAW Constitution. He explained that, before DeMott's request could be considered,

additional information was required, including: who refused to process a grievance on her

behalf, was it Local or International Union officials, when was the request made, how and

on what date was she notified of the refusal, the process or conversation in which in which

her request was denied, and why she believed the Union failed to properly represent her.

(Def. GM's Mot., Ex. 10, 4/24/08 ltr. to DeMott.) The letter also informed Plaintiff DeMott

that, because Article 33, Section 4(a) of the UAW Constitution requires that all appeals be

signed by the member perfecting the appeal and her submission was not signed by Dawn

Godi or Ashley Hilton, they would not be considered appellants in DeMott's appeal. (Id.)

Finally, the letter reiterated that the International Union could not proceed with DeMott's

attempt to appeal until she responded with the requested information. (Id.) 

On April 28, 2008, Dave Koscinski, an International UAW Representative, UAW GM

Department, sent a letter to DeMott that responded to DeMott's February 25th letter to

Chad Wurtzel, the Chairman of Local 467. (Def. GM's Mot., Ex. 11, 4/28/08 ltr. to DeMott.)

He informed DeMott that her letter was referred to him because it raises an issue under the

UAW/GM National Agreement and not any breach of contract administered by UAW Local

467. (Id.) He then informed Plaintiff that her grievance was untimely; and even if it were

timely, it lacked merit.

[Y]our complaint here is with the manner in which you were treated by General

Motors in July 2007, which you were represented by UAW Local 598, Flint Truck

Assembly. If you were unhappy with the options given to you by GM at that time,

you could have filed a grievance. You chose not to do so, and it is now too late

to seek relief under the National Agreement.

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More importantly, even if a grievance had been filed within the contractual time

limits, it would have been without merit. GM's decision to place you and others

from the Delphi Saginaw Plant in the Flint Truck Assembly Plant was in error.

At the time you were assigned there, more senior workers were awaiting

transfers to that location. By ignoring them, GM violated the National

Agreement. When the Union discovered this, it demanded that GM correct its

mistake. As a result, GM did what it should have done all along; offer you and

others positions in Pontiac and Lake Orion Assembly Plants. The national

parties also obtained an agreement from Delphi to allow you to return to the plan

in Saginaw. You were told all of this when international representatives from the

GM Department came to the Flint Truck Assembly Plant in mid 2007 to explain

why you would have to transfer or return to Delphi. 

(Id.) Finally, the letter informed Plaintiff DeMott that UAW Local 598 did not act on her

December 13, 2007 letter because her grievance "has no merit." (Id. at 2.) 

On June 19, 2008, DeMott sent a letter to the UAW Public Review Board ("PRB"), in

care of the UAW's President's Office, complaining that the International Union had refused

to process her January 25, 2008 and April 16, 2008 appeals, and that the Union was

thwarting her ability to file suit in federal court. (Def. GM's Mot., Ex. 12, DeMott 6/19/08 ltr.

to PRB.) DeMott's letter asserted that all the information needed for her appeal was

contained in the Complaint filed in Plaintiffs' First Lawsuit, and that her appeal was being

filed on her behalf as well as on the behalf of 20 other named individuals (including Michelle

Scott). (Id.) She requested a 30-day extension of time to file a detailed appellate brief.

DeMott's is the only signature on the letter. (Id.) She did not mention the April 28, 2008

letter to her from UAW Representative Dave Koscinski. (Id.) 

On July 15, 2008, Administrative Assistant Curson responded to DeMott's letter to the

PRB. He informed DeMott that her letter had been forwarded to the PRB, that her appeal

to the PRB was premature, that the PRB did not have appellate jurisdiction until after the

UAW's International Executive Board ("IEB") made a decision, and the IEB had not yet

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9

made a decision on DeMott's April 16, 2008 appeal request because DeMott had not

supplied the information requested in an April 24th letter. (Def. GM's Mot., Ex. 13, 7/15/08

ltr. to DeMott.) 

On August 15, 2008, DeMott's counsel, Harold Dunne, wrote to the Executive Director

of the UAW PRB informing the PRB that he had been retained by DeMott to represent her

and her co-appellants before the PRB and that he would be delivering an appellate brief

on Monday, August 18th. (Def. GM's Mot., Ex. 14, 8/15/08 ltr. from Pls.' s counsel Harold

Dunne.)

On August 21, 2008, the PRB's Executive Director, Barbara Klein, responded to

Attorney Dunne advising him that there was no appeal pending before the PRB on behalf

of DeMott and the others. (Def. GM's Mot., Ex. 15, 8/21/08 ltr. from PRB to Dunne.) She

reiterated what Administrative Assistant Curson had stated in his July 15th letter to DeMott,

i.e., that her appeal to the PRB was premature because there was no decision to review

from the IEB. (Id.) Moreover, Ms. Klein disputed Plaintiff DeMott's claim in her June 19th

letter that the International Union had refused to process her appeal. Rather than refusing

to process DeMott's appeal, the International Union "simply asked for additional information

about the appeal" that were routine. (Id.) DeMott and the other appellants, however, failed

to respond to the International Union's request for information. Accordingly, Ms. Klein

suggested that Attorney Dunne contact Curson, Administrative Assistant to President

Gettelfinger, to find out the current status of DeMott's appeal. (Id.) 

Neither Plaintiff DeMott nor Plaintiff's counsel made any further efforts to perfect her

appeal.

On January 15, 2009, Plaintiffs filed this Second Lawsuit.

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2. Plaintiff Michelle Scott

Plaintiff Michelle Scott is the only other Plaintiff who made any effort to pursue a

grievance or appeal under the UAW's Constitution after Plaintiffs' First Lawsuit was

dismissed for failure to exhaust on December 6, 2007.

On April 18, 2008, Plaintiff Scott sent a letter to the UAW's President's Office on her

behalf and on behalf of 15 other named individuals (not including Plaintiff DeMott), advising

that she and the others were filing an appeal under Article 33, Section (a) of the

International Constitution based on the UAW's refusal at the local, regional, and

international levels, to process a grievance that protests GM's removal of them from their

jobs at the Flint Assembly Plant. (Def. GM's Mot., Ex. 16, 4/18/08 ltr. from Scott.) Similar

to DeMott's letter, the only details provided in Scott's letter was a reference to Plaintiffs'

First Lawsuit and to an earlier submission of a statement of the facts. Scott complained

that "[n]o one, including your office, will assist us in pursuing our claim of being wrongfully

treated by GM." (Id.) 

On April 24, 2008, Administrative Assistant Curson from UAW President Gettelfinger's

Office responded, informing Scott that the Office cannot proceed with her appeal until she

provides more information -- the exact same information requested from DeMott -- and

further informing Scott that, because the additional 15 individuals had not signed her letter,

they could not be considered appellants in Scott's attempted appeal. (Def. GM's Mot., Ex.

17, 4/24/08 ltr. to Scott.) 

On June 13, 2008, Scott sent a letter to the PRB, in care of the UAW's President's

Office, claiming that the UAW had refused to process her appeal and asking the PRB to

consider her appeal which was brought on her behalf and on behalf of 20 other named

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11

individuals. Plaintiff DeMott was one of the listed individuals. So were Dawn Godi and

Ashley Hilton. (Def. GM's Mot., Ex. 18, 6/13/08 ltr. to PRB.) Scott also asked for a 30-day

extension to file a detailed appellate brief. (Id.)

On June 26, 2008, Administrative Assistant Curson from UAW President Gettelfinger's

Office responded to Scott's letter. Citing Article 33, Section 3(f) of the UAW Constitution,

he informed Scott that, because the IEB had not yet rendered a decision on her appeal, her

appeal to the PRB was premature. He also reminded Scott that she failed to properly

perfect her appeal to the International Union because she had not yet responded to or

supplied the information requested in the April 24th letter to her. (Def. GM's Mot., Ex. 19,

6/26/08 ltr. to Scott.) Finally, he advised Scott that her letter was being forwarded to the

PRB for its review. (Id.) 

On July 17, 2008, Barbara Klein, Executive Director of the PRB, responded to Scott's

forwarded letter. (Def. GM's Mot., Ex. 20, 7/17/08 PRB ltr. to Scott.) Klein enclosed a copy

of Article 33 of the UAW Constitution and offered to answer Scott's questions about how

the appellate process works. She reiterated Mr. Curson's explanation that, because she

had not yet perfected her appeal to the International Union and there was no IEB decision

for the PRB to review, her appeal to the PRB was premature. (Id.) Klein rejected Scott's

statement that the International Union had refused to process her appeal. Rather, she

reminded Scott that the International Union requires and requested critical information

about her appeal that Scott failed to provide. She explained that, without that information,

the International Union could not process her appeal. (Id.) Klein also reminded Scott that

the UAW Constitution requires the signature of each member who wishes to be included

in an appeal and instructed her on how to accomplish that task. (Id.) Finally, Klein advised

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Scott that, if she wished to continue with her appeal, she "should provide the information

requested in Administrative Assistant Curson's letter within 30 days of [her] receipt of

[Klein's] letter." (Id. at 2.) 

Scott did not provide the requested information as instructed.

On January 15, 2009, Scott filed this Second Lawsuit along with the other Plaintiffs.

E. Plaintiffs' Second Lawsuit

Counts II and III of Plaintiffs' complaint in this action assert a classic hybrid § 301

claim alleging that Defendant GM violated Plaintiffs rights created in the 2003 GM/UAW

National CBA and that Defendant UAW breached its duty of fair representation by failing

to enforce that National CBA. (Compl. ¶¶ 9-10, 16-28, 34-37.) Count I is captioned "The

Futility of Plaintiffs Exhausting their Administrative Remedies and their Internal Union

Appeal Procedure," but then inconsistently alleges that Plaintiffs both did and did not

exhaust. (Compare Compl. ¶ 44 with ¶ 47.) Despite the conflicting allegation in ¶ 44, the

remaining allegations in Count I assert that, because GM was facing bankruptcy and

Plaintiffs' grievance would be unduly delayed, any attempt to exhaust would be futile. (Id.

at ¶¶ 40-47.) 

II. Standard of Review

This matter is now before the Court on Defendants' motions for dismissal, under Rule

12(b)(6), or for summary judgment, pursuant to Rule 56(c).

A. Rule 12(b)(6) Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume

that the plaintiff’s factual allegations are true and determine whether the complaint states

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13

a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express

Corp., 96 F.3d 200, 203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the

complaint’s “factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all of the allegations in the complaint are true.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis

omitted). See also Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d

545, 548 (6th Cir. 2007). “[T]hat a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements

of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft

v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) The court is “not bound to accept as

true a legal conclusion couched as a factual allegation.” Id. at 1950 (internal quotation

marks and citation omitted). Moreover, “[o]nly a complaint that states a plausible claim for

relief survives a motion to dismiss.” Id. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense. But where the well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct, the complaint

has alleged – but it has not shown – that the pleader is entitled to relief.” Id. (internal

quotation marks and citation omitted). Thus, “a court considering a motion to dismiss can

choose to begin by identifying pleadings that, because they are no more than conclusions,

are not entitled to the assumption of truth. While legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations. When there are

well-pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.” Id. In sum, “[t]o survive a

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14

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim for relief that is plausible on its face.” Id. at 1949 (internal quotation marks

and citation omitted). 

B. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A moving party may meet that burden “by ‘showing’ – that is,

pointing out to the district court -- that there is an absence of evidence to support the

nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Revised

Rule 56 expressly provides that:

A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence of

a genuine dispute, or that an adverse party cannot produce admissible evidence

to support the fact.

Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to

properly support or address a fact:

If a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials – including

the facts considered undisputed – show that the movant is entitled to it; or

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15

(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

When the moving party has met its burden under rule 56, “its opponent must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Ultimately a district court must determine whether the record as a whole presents a

genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light most

favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286 F.3d 366,

370 (6th Cir. 2002).

III. Analysis

Defendants' motions argue that (1) Plaintiffs failed to exhaust their contractual and/or

intra-union remedies before filing this lawsuit, and (2) Plaintiffs' § 301 claims are timebarred by the applicable six-month statute of limitations. The Court addresses Plaintiffs'

failure to exhaust argument first.

A. Exhaustion Requirement

1. General Principles

To prevail on their hybrid § 301 claim, Plaintiffs must prove that GM breached their

CBAs and that the Union breached its duty of fair representation. Chauffeurs, Teamsters

& Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990); DelCostello v. Int’l Bhd. of

Teamsters, 462 U.S. 151, 164-65 (1983). No liability attaches to any defendant unless both

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16

prongs of the hybrid § 301 claim are established. Roeder v. Am. Postal Workers Union,

AFL-CIO, 180 F.3d 733, 737 (6th Cir. 1999). 

As to the breach of contract prong, it is well-established that if a grievance procedure

is included in a CBA, that process must be first exhausted before a plaintiff may file a

lawsuit alleging a breach. Vaca v. Sipes, 386 U.S. 171 (1967). As to the other prong, the

law is equally well-established that a plaintiff union member must likewise exhaust all

available intra-union remedies capable of activating or reactivating his or her grievance

before filing a lawsuit alleging that the Union breached its duty of fair representation.

Clayton v. UAW, 451 U.S. 679 (1981); Monroe v. Int’l Union, UAW, 723 F.2d 22, 24 (6th

Cir. 1983). 

It is undisputed that the National CBA at issue in this case contains a grievance and

arbitration procedure. (Def. GM's Mot., Ex. 21, GM/UAW National CBA dated 9/18/03, ¶¶

28-55.) It is likewise undisputed that internal union appeal remedies are available under

Article 33 of the UAW’s Constitution. Article 33 of the UAW Constitution requires all

members to complete the appeals process set out in that document before bringing a

lawsuit. (Def. UAW's Mot., Ex. D.1, UAW Constitution, Art. 33, §§ 1-5, pp. 86-96.)

As observed by the Sixth Circuit, generally in hybrid § 301 cases like this, “federal

labor policy requires that individual employees wishing to assert contract grievances must

attempt use of the contract grievance procedure agreed upon by employer and union as

the mode of redress before filing suit.” Wagner v. General Dynamics, 905 F.2d 126, 127

(6th Cir. 1990) (internal quotation marks and citation omitted) (emphasis in original). “[T]his

exhaustion requirement similarly applies to internal union appeals procedures provided by

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17

a union constitution.” Id. (citing Clayton, 451 U.S. at 696 and Monroe, 723 F.2d at 24).

Moreover, if Plaintiffs “inexcusably failed to exhaust union appeals, the failure would bar

this suit not only against the unions, but also against GMC.” Monroe, 723 F.2d at 24 (citing

Clayton, 451 U.S. at 692 n.20). See also Wagner, 905 F.2d at 127. 

2. Undisputed Evidence Shows Plaintiffs Failed to Exhaust

As the above-described letters establish, Plaintiffs failed to exhaust their contractual

and/or intra-union appeal remedies before filing this lawsuit. Of the eleven remaining

Plaintiffs in this lawsuit, only DeMott and Scott sent a letter asking for an appeal with their

signatures on it. Despite written reminders that Article 33, § 4(a) of the UAW Constitution

required that all appeals be signed by the union members seeking to pursue an appeal and

instructions on how to comply with this requirement, the other Plaintiffs failed to comply with

this requirement before filing this lawsuit. (Def. GM's Mot., Ex. 20, 7/17/08 ltr. to Scott

instructing that "You merely need to add a signature page to your appeal and have each

of the appellants sign it.") Thus, the claims of these nine other Plaintiffs -- Gerald

Gottleber, Luke Grappin, Matt Heimberger, Alan Henning, Lisa Kirk, Kenneth Kurlinski,

Patricia Moreau, Aaron Sandlin, and Michael Smith -- are dismissed because they never

even attempted to exhaust their contractual and/or intra-union remedies prior to filing this

lawsuit. See Wagner, 905 F.2d at 127 (observing that federal labor policy requires that

individual employees wishing to assert contractual grievances and/or internal union appeal

procedures must attempt to use those procedures before filing suit). 

Similarly, despite Plaintiffs DeMott's and Scott's attempts to exhaust their intra-union

appeal remedies, the above-described letters establish that they too failed to exhaust those

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remedies before filing this lawsuit. Specifically, these Plaintiffs failed to provide the

information requested by the UAW in the April 24, 2008 letters despite a warning that the

IEB could not proceed with Plaintiffs' attempt to appeal until this was done. (Def. GM's

Mot., Exs. 10 and 17.) Rather than provide the information, both DeMott and Scott went

directly to the PRB with the argument that the UAW was refusing to process their appeals.

(Def. GM's Mot., Exs. 12 and 18.) The PRB wrote and informed both DeMott and Scott as

well as Plaintiffs' counsel, in June, July, and August 2008, that it could not consider their

appeals until the IEB made a decision and that the IEB could not make a decision until

Plaintiffs supplied the information that it had requested. (Def. GM's Mot., Exs. 13, 15, 19

and 20.) Plaintiffs DeMott and Scott, however, failed to take any further steps to perfect

their appeals. Rather, they waited until January 15, 2009 and then filed this lawsuit.

Because Plaintiffs DeMott and Scott failed to exhaust their remedies before filing suit, their

hybrid § 301 claims are dismissed. 

3. Plaintiffs Cannot Show Futility

In Clayton, the Supreme Court identified that a plaintiff’s failure to exhaust may be

excused if the plaintiff establishes that: (1) hostility on the part of union officials at every

level of the appeal process precludes a fair hearing of the plaintiff’s claim; (2) the internal

appeals process is inadequate to provide complete relief or reinstatement of a grievance;

or (3) exhaustion would unreasonably delay a plaintiff’s ability to seek a judicial hearing on

the merits of his or her claim. Wagner, 905 F.2d at 128; Monroe, 723 F.2d at 24-25. The

burden is on the employee to come forward with evidence excusing the failure to exhaust

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internal union remedies before filing suit. See Clayton, 451 U.S. at 689, Terwilliger v.

Greyhound Lines, Inc., 882 F.2d 1033, 1039 (6th Cir. 1989). 

In an attempt to avoid their exhaustion requirement, Plaintiffs do not argue hostility on

the part of union officials. Rather, they allege in their complaint that it would have been

futile for them to exhaust their contractual and intra-union remedies because GM was

headed toward inevitable bankruptcy and this would force a three-year delay in the

grievance/appeal process. (Compl., ¶¶ 40-47.) This futility argument lacks merit. 

Plaintiffs fail to identify any facts supporting their allegation that any delay caused by

GM's bankruptcy would result in their being unable to receive full relief. Defendant UAW,

on the other hand, presents evidence that refutes Plaintiffs' argument. Plaintiffs filed this

lawsuit on January 15, 2009. On June 10, 2009, Defendant GM notified the Court that it

had filed a bankruptcy petition [7], and an Order of Administrative Closure was entered on

June 16, 2009 [8], staying the case pursuant to 11 U.S.C. § 362(a)(1). On November 4,

2010, Plaintiffs filed a motion to lift the stay [9], and the Court granted that motion on

November 8, 2010 [10]. During the 17-month period in which this case was stayed, the

grievance and arbitration procedures set forth in the GM/UAW CBA continued to operate

normally. (Def. UAW's Mot., Ex. C, Koscinski Decl., ¶ 5.) There was never any interruption

with the UAW's internal appeals process with regard to grievances concerning GM

employees represented by the UAW. 

Plaintiffs apparently abandon the futility argument alleged in their Complaint as it is

not addressed in their Response. Rather, their Response raises two new futility arguments:

(1) they should be excused from exhausting their appeals because the decisions that

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resulted in their transfer to and subsequent removal from the GM Flint Truck plant might

constitute "official collective bargaining policies" that are not appealable to the PRB (Pls.'

Resp. at 4-5); and (2) their § 301 claim is ripe for judicial review because the memorandum

of understanding ("MOU") entered into between GM, the UAW, and Delphi that resulted in

their employment at GM in the first instance was approved by the bankruptcy court and

thus any change in their employment can only be determined in a judicial setting (Pls.'

Resp. at 5-6). 

This Court first addresses Plaintiffs' argument that they could not exhaust because the

PRB did not have jurisdiction over their appeal. Specifically, Plaintiffs' argue that GM's and

the UAW's decisions that resulted in their transfer to and subsequent removal from the GM

Flint Truck plant might be construed as "collective bargaining policies" that are precluded

from review by the PRB under Article 33, § 3(f) of the UAW Constitution. This argument

was previously raised and rejected in Plaintiffs' First Lawsuit. There, the Court held that:

Plaintiffs' allegations giving rise to their § 301 claims reveal that they are not

seeking to undo the National CBA because they quarrel with decisions made by

the UAW during bargaining with GM. Rather, they seek to enforce the terms of

the National CBA that Plaintiffs allege were breached by GM. Accordingly, . . .

there are CBA and intra-union procedures that provide the relief Plaintiffs seek.

(12/06/07 Opin. & Order at 9-10.) Plaintiffs argue here that GM breached the National CBA

and that the UAW breached its duty of fair representation by refusing to remedy GM's

alleged contract breach. Plaintiffs do not claim that the UAW breached its duty of fair

representation by agreeing in the first instance to the contractual provisions at issue here.

That is the sort of claim that would not be reviewable by the PRB.

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Plaintiffs' claim that Defendants' motions should be denied because they need more

discovery is also rejected. The discovery they seek cannot possibly advance the futility

arguments they raise here.

21

Moreover, even if the PRB did not have jurisdiction to consider Plaintiffs' appeal, a

different internal appeals path was open to them. As this Court explained in Plaintiffs' First

Lawsuit, even if Plaintiffs' dispute involved matters of bargaining policy beyond the purview

of the PRB, Article 33 of the UAW Constitution permits complaints regarding bargaining

policy to be appealed to another independent decision-making body -- the Convention

Appeals Committee ("CAC"). 

The CAC has jurisdiction to consider and decide all appeals submitted to it from

any decision of the International Executive Board. The CAC is composed of

members from around the country selected by lot from rank-and-file delegates

to the UAW's Constitutional Convention. Thus, Plaintiffs have available process

that allows them to have a hearing independent of the UAW's political hierarchy

if they fail to prevail at one of the lower steps of the appeals process.

(Id. at 10 (internal quotes and citations to UAW Constitution omitted).) Plaintiffs' futility

arguments ignore this intra-union remedy.5 

The Court now addresses Plaintiffs' argument that they "should not be required to

exhaust their contractual and intra-union remedies before seeking judicial redress since the

agreement between the UAW, GM and Delphi stemmed from a court order." (Pls.'s Resp.

at 5.) At the motion to dismiss hearing in Plaintiffs' First Lawsuit, they raised a similar

argument that was rejected by the Court. (Def. GM's Reply, Ex. A, 12/05/07 Tr. at 11-13.)

The Court now rejects Plaintiffs' current version of this argument. Plaintiffs provide no legal

authority or other support for their argument. As stated above, Plaintiffs claim a breach of

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the 2003 GM/UAW National CBA, not a breach of the March 22, 2006 UAW/GM/Delphi

MOU that was approved by the bankruptcy court. 

B. Plaintiffs' § 301 Claim is Barred by the Statute of Limitations

Defendant GM also argues that Plaintiffs' hybrid § 301 claim should be dismissed with

prejudice because it is barred by the applicable statute of limitations. Specifically,

Defendant argues that Plaintiffs' claim accrued, at the latest, on June 21, 2007, because

this is when they filed their First Lawsuit as thus cannot argue that they had not yet

discovered the alleged breach of the National CBA. Thus, Plaintiffs had six months from

June 21, 2007 to begin the grievance process and to toll the statute of limitations which

would expire on December 21, 2007. Only Plaintiff DeMott did so -- on December 13,

2007. Despite Plaintiff DeMott's effort to toll the statute of limitations only days before it

expired, Defendant argues that the Court cannot ignore the amount of time that lapsed

before she did so and the amount of time that lapsed between the UAW's last contact with

Plaintiff DeMott and the time this Second Lawsuit was filed. 

Plaintiffs, on the other hand, argue that the six month statute of limitations period only

began to run on August 21, 2008 and had not expired on January 15, 2009 when Plaintiffs

filed this Second Lawsuit. On August 21, 2008, the UAW's PRB informed Plaintiffs' counsel

Harold Dunne that the PRB could not consider an appeal from the IEB when the IEB has

not yet issued a decision on Plaintiff's grievance, rejected the assertion that the IEB had

refused to process Plaintiff's appeal, pointed out that it was Plaintiff and not the UAW that

was holding-up her appeal because she had not yet responded to the IEB's request for

additional information necessary for the IEB to process Plaintiff's appeal, and suggested

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that Plaintiffs' counsel contact Administrative Assistant Curson to find out the current status

of Plaintiff's appeal. (Pls.' Resp., Ex. 5, 8/21/08 ltr. to Harold Dunne.) 

Defendant responds that the six month statute of limitations did not begin anew on

August 21, 2008. Rather, the hybrid § 301 claim accrued on the date Plaintiffs filed their

First Lawsuit -- June 21, 2007 -- and the limitations period is tolled only while an employee

diligently pursues available internal union remedies. Because Plaintiffs failed to diligently

pursue those remedies during the entire period the First Lawsuit was pending and failed

to do so again after August 21, 2008, Defendant argues that Plaintiffs not only filed this

Second Lawsuit before exhausting their contractual and/or intra-union remedies but also

filed this Second Lawsuit after the relevant six-month statute of limitations period had

expired. This Court agrees with Defendant and thus dismisses Plaintiffs' hybrid § 301 claim

with prejudice.

It is well-settled that a six-month statute of limitations applies when an employee sues

his employer under a § 301 claim. See DelCostello, 462 U.S. at 172, Ryan v. Gen. Motors

Corp., 929 F.2d 1105, 1110 (6th Cir. 1989). "A claim under § 301 accrues when the

claimant discovers, or in the exercise of reasonable diligence should have discovered, the

acts constituting the alleged violation." Noble v. Chrysler Motors Corp., 32 F.3d 997, 1000

(6th Cir. 1994) (internal quotation marks and citation omitted). An employee's claim

accrues against the employer and the union at the same time. Robinson v. Central Brass

Mfg. Co., 987 F.2d 1235, 1239 (6th Cir. 1993). 

Plaintiffs fail to provide any legal or factual support for their argument that their hybrid

§ 301 claim against Defendants GM and the UAW accrued later than June 21, 2007 -- the

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24

date they filed their First Lawsuit -- nor can they. The Sixth Circuit has consistently rejected

an argument that a plaintiff cannot both pursue his internal union remedies and also comply

with the six-month statute of limitations period. In Dunleavy v. Local 1617, United

Steelworkers of Am., 814 F.2d 1087 (6th Cir. 1087), the court "held that the limitations

period should be tolled while an employee diligently pursues his available internal union

remedies." Knighten v. Gen. Motors Corp., No. 07-2559, 2009 WL 332821, *5 (6th Cir.

Feb. 12, 2009) (citing Dunleavy, 814 F.2d at 1089)). Accordingly, by invoking the doctrine

of equitable tolling, a plaintiff can and must comply with both obligations. As the Sixth

Circuit observed in Knighten, "[a]n employee wishing to bring a hybrid § 301 claim may not

disregard either the limitations period or the exhaustion requirement, and compliance with

one does not excuse the failure to satisfy the other." Id. 

Plaintiffs also fail to show how tolling would operate to place their Second Lawsuit

within the six-month statute of limitations period. First, the limitations period was not tolled

while the First Lawsuit was pending. As the Sixth Circuit observed in Howell v. General

Motors Corp., 19 F. App'x 163, 166 (6th Cir. 2001), when there is a dismissal without

prejudice, that action is not tolled for the time period in which it was pending. As the Sixth

Circuit explained:

It is generally accepted that a dismissal without prejudice leaves the situation the

same as if the suit had never been brought, and that in the absence of a statute

to the contrary a party cannot deduct from the period of the statute of limitations

the time during which the action so dismissed was pending. 

Id. (quoting Wilson v. Grumman Ohio Corp., 815 F.2d 26, 27 (6th Cir. 1987)). Relevant

here, the court further explained that, "when a hybrid § 301 action is dismissed for failure

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25

to exhaust internal union remedies, the dismissal is without prejudice," and "[w]hile a

dismissal without prejudice permits a plaintiff to refile the action, that does not mean the

refiled action will necessarily be filed within the applicable statute of limitations." Howell,

19 F. App'x at 167. 

Second, Plaintiffs cannot show that they diligently pursued their internal union

remedies after August 21, 2008, and thus the months between that date and the January

15, 2009 date when they filed their Second Lawsuit are not entitled to equitable tolling. It

is well-established that the statute of limitations period is equitably tolled only during the

time period when the plaintiff is diligently pursuing his or her internal union remedies. See

id. at 167-68 (citing Dunleavy). 

Plaintiffs cannot show that they filed their Second Lawsuit within the six-month statute

of limitations period. Because the six-month statute of limitations period was not tolled

during Plaintiffs' First Lawsuit, it was due to expire on December 21, 2007. This Court

dismissed Plaintiffs' First Lawsuit on December 6, 2007. On that date, there were 15 days

left in the six-month statute of limitations period. Plaintiff DeMott was the only Plaintiff who

took any action before December 21, 2007. On December 13, 2007, she began the pursuit

of her internal union remedies. On that date, Plaintiff DeMott had eight days left before the

six-month statute of limitations expired. More than eight days lapsed between the August

21, 2008 letter that Plaintiffs claim represents the end of their active pursuit of internal

union remedies and the January 15, 2009 date when Plaintiffs filed this Second Lawsuit.

"Principles of equitable toling usually dictate that when a time bar has been suspended and

then begins to run again upon a later event, the time remaining on the clock is calculated

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26

by subtracting from the full limitations period whatever time ran before the clock was

stopped.") See id. at 168 (quoting United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991)).

Assuming, without deciding, that all Plaintiffs can reap the benefits of Plaintiff DeMott's

actions, they all suffer the same consequence. Because Plaintiffs failed to file their hybrid

§ 301 claim with the six-month statute of limitations period, that claim is dismissed with

prejudice. Plaintiffs provide no legal support for a contrary conclusion. 

IV. Conclusion

For the above-stated reasons, Defendants' motions to dismiss or for summary

judgment are GRANTED. The hybrid § 301 claim asserted in Plaintiffs' complaint is

DISMISSED WITH PREJUDICE.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: March 3, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record

on March 3, 2011, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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