Lee, et al v. Cytec, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30624
______________
DAVID LEE; KEVIN DUGAS; WAYNE CARBO;
CESHA JOHNSON; CHRISTOPHER VICTORIANO,
Plaintiffs-Appellants,
VERSUS
CYTEC INDUSTRIES, INC.;
PAPER, ALLIED-INDUSTRIAL CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION, AFL-CIO-CIC, LOCAL 4-447;
ALLIED-INDUSTRIAL CHEMICAL AND ENERGY WORKERS
INTERNATIONAL UNION, AFL-CIO-CIC,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:03-CV-3176
_________________________
Before SMITH, GARZA, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.
Cytec Industries (“Cytec”) closed its Am-
monia Unit in June 2001. Cytec and its union
agreed on the re-arranging of employees after
the closing based on the Collective Bargaining
Agreement (“CBA”) and seniority rights. In
July 2001, the final bumping sheet was posted
by Cytec on bulletin boards at the relevant fa-
United States Court of Appeals
Fifth Circuit
F I L E D
August 11, 2006
Charles R. Fulbruge III
Clerk

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cility. David Lee, Kevin Dugas, Wayne Carbo,
Cesha Johnson, and Christopher Victoriano
sued on November 12, 2003, alleging breach of
contract claims against Cytec, breach of fair
representation claims against the union, and
severalother claims based on their displacement
and/or recall rights. The district court granted
summary judgment for the defendants. We
affirm.
I.
A.
Plaintiffs argue that the district court erred in
holding that the statute of limitations in a hybrid
section 301 lawsuit starts to run when the
employees knew or should have known of the
union’s breach.1 Plaintiffs contend instead that
the statute runs from when they knew or should
have known that the union would no longer
process their grievances. This oversimplifica-
tion of the district court’s decisions is mis-
leading.
That court did note, with respect to plain-
tiffs’ displacement claims, that under the law of
this circuit, limitations started running when
plaintiffs knew or should have known of the
union’s breach of their rights, namely with the
publication of the July 2001 bumping orders
according to which plaintiffs were to be dis-
placed, an event akin to the adoption of a new
seniority system.2 But the court acknowledged,
with respect to claims arising in the non-griev-
ance context, such as the claim challenging the
adoption of the bumping sheet (as opposed to
grievance-related claims challenging how the
union processed a particular grievance), courts
have held that the statute was equitably tolled
for the duration of the grievance proceedings
until the employees knew or should have
known that the union would no longer process
their grievances. See Adkins v. Int’l Union of
Elec., Radio & Machine Workers, 769 F.2d
330 (6th Cir. 1985) (holding that the
employees’ good-faith attempt to exhaust their
internal contractual remedies through the
grievance process will prevent the accrual of
their action).3
The district court obwerved, however, that
those cases are distinguishable because they in-
1 Hybrid suits, such as this, formally comprise
two causes of action. First, the employee alleges
that the employer violated § 301 of the Labor Man-
agement Relations Act (“LMRA”), 61 Stat. 156, 29
U.S.C. § 185, by breaching the collective-bargain-
ing agreement. Second, the employee claims that
the union acted in such a discriminatory, dishonest,
arbitrary, or perfunctory fashion as to breach its du-
ty of fair representation.
2 See Barrow v. New Orleans S.S. Ass’n, 932
F.2d 473, 478 (5th Cir. 1991) (holding that any
claims based on the allegedly unlawful adoption and
subsequent applications of a seniority system ac-
crued when the employee knew of the breach of the
CBA, namely of the new seniority system, “re-
gardless of when the effects of such system are ac-
tually felt”); Barrett v. Ebasco Constructors, Inc.,
868 F.2d 170, 171 (5th Cir. 1989).
3 As the district court explained, a claim for
breach of duty of representation in the adoption of
a new seniority system or a bumping sheet does not
arise in a grievance context, because it does not
challenge discriminatory conduct in the application
of the grievance procedure. See also Adkins, 769
F.2d at 336 (“Certainly, the typical hybrid claim is
based on the union’s failure to properly process a
grievance, so nonjudicial enforcement has already
failed. But where the union’s alleged breach of duty
is in a nongrievance context, as here, the employees’
good-faith attempt to exhaust their contractual
remedies will prevent the accrual of their action.”).

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volved situations in which a grievance was filed
with the union within six months of the breach
of the CBA. The court held that these cases are
inapplicable here, because plaintiffs have not
filed grievances with the union regarding their
displacements within six months of July 2001,
when the violation of the CBA occurred.
Plaintiffs argue that the district court erred,
nonetheless, because for tolling to apply, there
is no requirement that a grievance must be filed
with the union within six months of the breach.
The courts are split on the issue, however, and
this appears to be an issue of first impression in
this circuit.4
We agree with the district court and the oth-
er courts that have held that to invoke equitable
tolling, an employee must file a grievance with
the union within six months of the adoption of
a new seniority system. Equitable tolling is an
exception to the general rule that an employee
has six months to sue from the discovery of the
breach of the duty of fair representation. The
rationale for it is that because some plaintiffs
must exhaust internalcontractualremedies (e.g.
the grievance process) before suing, it would be
unfair to say that the plaintiffs’ claim is barred
by limitations if, while the grievance is pending,
the six-month federal statute of limitations
expires.5 We conclude, however, that this
exception to the general accrual rule could not
confer more rights than those that plaintiffs
would have if they were not entitled to this
exception, that is if plaintiffs did not have to
exhaust internal remedies.
In other words, plaintiffs cannot wait until
the statute of limitations for a federal lawsuit
has passed and then file a grievance to circum-
vent the applicable six-month statute. This is
especially so given that the six-month limi-
tations period under federal law is an extension
of the time period provided by many state
statutes.6
Furthermore, because federallaw favors ear-
ly resolution of labor disputes, DelCostello v.
Int’l Bhd. of Teamsters, 462 U.S. 151, 168
(1983), tolling is applicable only for a “good
faith” attempt to pursue non-judicial remedies,
Adkins, 769 F.2d at 335 (“[T]he employees’
good-faith attempt to exhaust their contractual
remedies will prevent the accrual of their ac-
tion.”). Here, the lack of good faith is demon-
strated by the fact that the grievance was not
filed within the 10-day period required by the
CBA.7 But even if the CBA allowed eight
4 Compare Whittle v. Local 641, Int’l Bhd. of
Teamsters, 56 F.3d 487, 490 (3d Cir. 1995) (re-
jecting the holding that the failure to file either a
grievance or a legal action within six months of the
date plaintiffs discovered the violation of the CBA
made their federal suit untimely) with Long v. Gen.
Motors Corp., 19 Fed. App’x 200, 203 (6th Cir.
2001) (“But the Complaint clearly reflects that the
plaintiffs made no attempt to initiate a formal griev-
ance until 1994, after the six-month statute had run.
Because the plaintiffs waited beyond the six-month
time period to invoke their formal contractual rem-
edies, they cannot benefit from the late accrual
rule.”).
5 See, e.g., Frandsen v. Bhd. of Ry., Airline &
S.S. Clerks, 782 F.2d 674, 681-84 (7th Cir. 1986).
6 Frandsen v. Bhd. of Ry., Airline & S.S. Clerks,
782 F.2d 674, 681 (7th Cir. 1986) (“DelCostello’s
six-month statute of limitations lengthened the
amount of time a worker had in most states to file a
claim in court after exhausting internal union
appeals.”).
7 For the reasons stated by the district court, we
reject defendants’ contention that the grievance must
be filed within the period prescribed by the CBA
(continued...)

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months to file such a grievance, a plaintiff who
waits until the seventh month to bring such a
grievance waives his right to the federal action,
which must be brought within six months.
We also reject plaintiffs’ contention that
events that occurred after June 2001 changed
the announced displacements and re-started the
limitations period. As the district court ex-
plained, there is no evidence that plaintiffs were
told in June 2001 that the announced dis-
placements were tentative. To the extent that
a claim for the failure to account for resigna-
tions in the implementation of the bumping
sheet did accrue later, that claim fails because it
does not represent a breach of the duty of fair
representation, as we will explain in part II.B.,
infra.
B.
With respect to the recall claims, the district
court found that only Johnson’s and Victoria-
no’s were not barred by the statute of limita-
tions. It held that plaintiff Carbo’s recall claim
was barred by limitations because he did not
sue within six months of November 15, 2002,
when he received notice that his grievance was
denied; thus he knew or should have known
that the union would not take any further action
on his grievance without some action on his
part. Plaintiffs challenge the finding that Car-
bo’s claim was untimely, arguing that the union
had notice of his claim. We do not see how this
affects in any way the fact that under the law,
Carbo had to sue within six months of the time
it became obvious that the union had rejected
his claim.
Plaintiffs also urge that the union could not
have rejected Carbo’s claim without a vote of
the membership. But, once a grievance is re-
jected at an early stage, the grievant must self-
process that issue for it to reach a vote of the
membership. As the district court indicated,
there was no evidence that Carbo attempted to
reach the voting stage on his own after Novem-
ber 15, 2002. Therefore, the district court cor-
rectly held that Carbo’s recall claim was barred
because he did not sue within six months of
November 2002.
The court also found that Lee’s recall claims
were barred because he did not sue within six
months of December 2002, when Wade Gilbeau
(the union-Cytec group chairman) told him that
a grievance already in existence (No. 01-36)
would not benefit Lee. Plaintiffs claim
nonetheless that this grievance does benefit
Lee.
But, if the grievance benefits Lee, and is cur-
rently in arbitration, then Lee cannot file this
lawsuit until the arbitration ends, because he is
not complaining about the arbitration pro-
ceedings. Only if the grievance does not benefit
him can Lee claim a breach of the duty of fair
representation, but in that case, he is barred by
limitations, as found by the district court.
Carbo’s claim about grievance No. 01-36 fails
for the same reasons.
II.
A.
Plaintiffs dispute the district court’s finding
that the union did not act arbitrarily or in a dis-
criminatoryor bad faith manner against Johnson
and Victoriano. They had argued in the district
court that the union breached its duty of fair
representation by delaying processing their
grievances. That court held that no breach had
occurred, finding that such delay was common
7(...continued)
(here 10 days). Failure to file within the period
prescribed by the CBA, however, can be relevant to
the issue of “good faith.”

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and that the union has taken steps to pursue
plaintiffs’ grievances and will continue to so.
Plaintiffs aver that whether the delay was
common is a disputed issue of material fact for
the jury and that the district court weighed evi-
dence and made impermissible credibility deter-
minations. They insist the court erred in relying
on Gilbeau’s testimony that the delay was
common and a result of the policy of giving pri-
ority to discharge-related grievances over those
that did not involve termination. They also
claim that the record included evidence that
contradicted Gilbeau’s testimony. In support of
the “contradiction” they cite only the fact that
grievance No. 01-36 reached a third-step
meeting in less than ten months.
This fact does not “contradict” Gilbeau’s
testimony. As the district court explained, the
union asserted that the delay was common and
that many grievances filed in 2002 and 2003
were still awaiting arbitration, and that non-dis-
charge grievances commonly take over a year
to be put to the vote of the membership. That
is, the fact that several non-discharge griev-
ances such as grievance No. 01-36 were sent to
arbitration in about a year does not contradict
the fact that “many” such discharges were still
awaiting arbitration, and that “commonly” it
took over a year for a dispute to be voted to
arbitration.
There is no credibility determination here:
Even if the facts alleged by the plaintiffs are
true, they still are unable to refute the union’s
statement that delay was common. Because
plaintiffs had the burden of proving that the de-
lay was arbitrary, discriminatory, or in bad faith,
as opposed to “common,” summary judgment
was appropriate.
Plaintiffs devote another section of their
brief to arguing that the union breached its duty
of fair representation because it never “fully
processed” any of the grievances involving dis-
placements. This allegation seems to be anoth-
er version of the “arbitrary and discriminatory”
delay argument described above. But the evi-
dence indicates that the grievances were in fact
being processed, albeit with a delay. Therefore,
this claim fails for the same reasons that the
“delay” claim fails.
Moreover, even if the claim is recast as ar-
guing that the union discriminated against “dis-
placement” claims by purposefully delaying
them in favor of “discharge” claims,8 such con-
duct was not unreasonable or irrational. Rath-
er, the union acted on the relevant consider-
ation of giving priority to those who would suf-
fer the mostSSdischarged employees.
B.
Appellants argue that the union breached its
duty of fair representation by impairing the sen-
iority rights of “Carbo, Victoriano and Dugas9
by failing to follow its unlawful 2001 bump or-
der and allowing employees with less seniority
to earn higher wages.” As discussed, of the
three, only Victoriano’s recall claims are not
barred, and plaintiffs fail to brief, in this section,
how Victoriano’s seniority rights were im-
paired.
Even assuming that this claim was not
8 We do not address the issue of whether such a
generalized claim that all “displacement” grievances
were delayed satisfies the requirement that claims
for breach of duty of fair representation must show
that the plaintiff was singled out for discriminatory
treatment.
9 Dugas does not allege any breaches of the CBA
after his displacement.

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waived for want of briefing, it fails for two rea-
sons. First, the evidence shows that Victoriano
was displaced from his Warehouseman job by
Tamplain, who was more senior than he was,
because she had a badge number of 3011 and
Victoriano’s badge number was 3086.
Second, Victoriano’s complaints with re-
spect to less senior employees working in high-
er paying jobs were about Breaux (badge
3083), Toups (badge 3082), Dunham (badge
3087) and Higginbotham (badge 3092), of
whom in fact only Dunham and Higginbotham
were less senior than was Victoriano. Even the
claims based on Dunham’s and Higginbotham’s
higher pay fail to show arbitrary and dis-
criminatory action against Victoriano. Rather,
the record shows that Higginbotham and Dun-
ham were able to “recall” into their Warehouse-
man jobs because the more senior employees
who were supposed to displace them based on
the July 2001 bumping sheet resigned.
Plaintiffs claimed throughout the proceed-
ings that not revising the July 2001 bumping
sheet to account appropriately for the resigna-
tions was an “error.” But a failure to account
for resignations to modify the bumping sheet,
even assuming it was erroneous, shows only
negligence, applicable to all who were affected
by this failure, not intentional and invidious ac-
tion targeted at Victoriano. The duty of fair
representation is not breached by mistakes in
judgment or less than perfect conduct by the
union.10 Without more, Victoriano fails to
make a claim for discriminatory and arbitrary
conduct that impaired his seniority rights.11
10 Landry v. Cooper/T. Smith Stevedoring Co.,
880 F.2d 846, 852 (5th Cir. 1989); Pease v. Prod.
Workers Union, 386 F.3d 819, 824 (7th Cir. 2004)
(finding that union can be mistaken in its under-
standing of the collective bargaining agreement with
respect to seniority rights “without departing from
(continued...)
10(...continued)
its duty of fair representation”). Furthermore, the
union’s interpretation is not necessarily mistaken or
unreasonable. As plaintiffs admit, article 18.4
provides that an employee displaced by a unit
closing has recall rights to “his” job before other
employees are allowed to bid for the position.
Therefore, it is not unreasonable to interpret this
provision as indicating that Dunham and Higgin-
botham, displaced on the bumping sheet by more
senior employees, had a right to recall to their jobs
when these senior employees resigned, before Vic-
toriano was allowed to bid for them. That is, Vic-
toriano did not have recall rights to Dunham’s and
Higginbotham’s jobs, but only bidding rights.
11 Plaintiffs also argue that the union breached its
duty of fair representation because it acted contrary
to its memberships’ interests. In support of this
claim, they cite several cases but fail to explain in
any manner what the union did to be deemed to act
“contrary to its memberships’ interests.” Thus, this
half-page claim is waived for failure to brief ade-
quately.
In another subsection devoted to the breach of
the duty of fair representation, plaintiffs also argue
that the union ignored its internal rules by
“disregarding the concerns of a large percentage its
[sic] membership.” Plaintiffs fail to cite any law for
this argument, so it is also waived for inadequate
briefing.
This argument is also very vague. It appears
that it relates to Gilbeau’s denial of a special meet-
ing, despite the fact that a written demand was
signed by ninety two members. Plaintiffs do not
state, however, which “internal rule” was violated
by this denial.

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C.
Because, as we have explained, the local
chapter of the union did not breach its duty of
fair representation with respect to any of plain-
tiffs’ timely claims, there is no breach that could
be attributed to the International Union.
Therefore, the district court correctly dismissed
the claims against the International Union.
III.
Plaintiffs contend the district court improp-
erly dismissed their “breach of contract” claim
against the union, a breach that involves the
local’s constitution and bylaws. In their com-
plaint, plaintiffs did not specify what state law
claims they were asserting, nor did they men-
tion any provision of state law in any of the
counts of the complaint. Additionally, they did
not respond to the portion of Cytec’s motion
for summary judgment asking for dismissal of
the state law claims because they were vague,
inadequately pled, or preempted by section 301
of the LMRA. Therefore, the state law claims
against the union are waived for appeal pur-
poses.12
Even assuming, arguendo, that the breach of
contract claims are not waived, the district
court did not err in finding that they are pre-
empted by section 301 because they are “inex-
tricably intertwined” with the CBA and hinge
on an interpretation of the CBA. The only case
plaintiffs cite in support is from another juris-
diction and is inapposite. Although Korzen v.
Local Union 705, Int’l Bhd. of Teamsters, 75
F.3d 285, 289 (7th Cir. 1996), which they rely
on, held that claims for a violation of a local’s
constitution arise under state law, it did not
hold that claims arising under state law could
not be preempted by section 301.
Nor could the Korzen court have even ad-
dressed the issue of whether the claim for
breach of the union’s constitution in that case
was intertwined with the CBA, given that the
plaintiff was an employee of the union, so the
CBA did not apply to her. Id.
IV.
Plaintiffs claim on appeal that the union vio-
lated section 101(a)(2) of the LMRDA.13 In
support, they allege that the local union pres-
ident, Brent Petit, on hearing complaints about
the 2001 bump procedure, suggested that the
complaints be brought in a different forum,
namely the Cytec group meetings, and “asked
Victoriano whether he wanted to file charges
against Gilbeau, but warned that if those charg-
es were unwarranted, Victoriano would be
kicked out of the union.”
Plaintiffs reason that this constituted a threat
of reprisal for voicing complaints over the un-
ion’s behavior, or at least constituted “union
conduct that inhibits or threatens dissenting
speech,” which they claim is prohibited by sec-
tion 101(a)(2) of the LMRDA. In support they
only cite a case from another circuit. Because
they have not raised this LMRDA claim in their
complaint or before the district court, it is
waived: In their amended complaint, plaintiffs
allege jurisdiction pursuant to the LMRDA, but
they do not cite any specific provision of the
LMRDA that was violated, nor do they refer-
ence the LMRDA anywhere other than in the
12 Little v. Liquid Air Corp., 37 F.3d 1069, 1071
n.1 (5th Cir. 1994) (en banc) (explaining that we
will not consider arguments not presented to the dis-
trict court).
13 Labor-Management Reporting and Disclosure
Act of 1959 (“LMRDA”), Pub. L. 86-257, 73 Stat.
522, § 101(a)(2), 29 U.S.C. § 411(a)(2).

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jurisdictional statement. They do not even
mention the alleged incident or any other inci-
dent involving “threats” of reprisal for voicing
concerns. Further, they have not specifically
alleged any violation of § 101(a)(2) of the
LMRDA and have not devoted any section or
portion of their memorandum opposing the
motion for summary judgment to describing
their LMRDA claims or to briefing the district
court on why summary judgment was inappro-
priate on those claims.14
For the same reasons, we also reject plain-
tiffs’ argument that the union violated the
LMRDA when Petit “chose to ignore Victori-
ano’s pleas and stifled any other complaints
with threats of reprisals.”15 Although in the
paragraph making this statement, plaintiffs de-
scribe that Petit denied that he received a re-
quest for a meeting signed by ninety-two union
members, we do not understand how the state-
ment that he had not received a petition
amounted to “threats of reprisal.”16
The judgment is AFFIRMED.
14 Plaintiffs mentioned, in their memorandum
opposing the motion for summary judgment, that
Petit told Victoriano that if unsubstantiated charges
were brought against Gilbeau, the charger faced
exclusion from the union. This was described in a
section labeled “Victoriano’s Grievance.” But,
plaintiffs never alleged that this act constituted a
violation of the LMRDA, or briefed the district
court on any law that would suggest that this is a
violation of the LMRDA. Therefore, the issue of
why these alleged threats violate § 101(2) of the
LMRDA is waived for appeal purposes. See Little,
37 F.3d at 1071 (explaining that we will not
consider arguments not presented to the district
court).
15 This argument is also unsupported by the rec-
ord. There is no evidence that anyone other than
Victoriano was allegedly threatened with reprisal,
and plaintiffs’ brief does not cite to the record in
support of this statement.
16 In the remainder of the section of their brief
dedicated to the LMRDA, plaintiffs refer to events
that they allege demonstrate “inaction” and “arbi-
trary conduct” toward their grievances. They do not
brief us, however, on why this would be a violation
of the LMRDA as opposed to a mere breach of the
duty of fair representation. Even if these claims did
state a claim for a violation of the LMRDA, they
would be waived because they were not properly
before the district court, as we have explained.

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