John Delach v. LINDY PAVING INC.; LOCAL No. 341, IBT

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-2036
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JOHN DELACH,
Appellant
v.
LINDY PAVING INC.; LOCAL No. 341, IBT
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:23-cv-01632)
District Judge: Honorable Marilyn J. Horan
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Submitted Under Third Circuit LAR 34.1(a)
April 10, 2025
Before: HARDIMAN, PORTER, and SMITH, Circuit Judges.
(Filed: April 15, 2025)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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HARDIMAN, Circuit Judge.
John Delach appeals an order dismissing his hybrid claim under the Labor
Management Relations Act. We will affirm.
I
Lindy Paving, Inc. is, as its name suggests, a highway paving business. Because
much of its work is performed during the warm weather months, Lindy relied on seasonal
employees. It typically hired in the spring, laid off workers in the fall, then rehired them
the following spring. As of 2023, Delach had worked for Lindy as a seasonal truck driver
for 15 years.
In January 2023, Delach was hired for a special assignment, but he was not
recalled that spring. Instead, Lindy began recalling truck drivers junior to Delach, which
prompted him to reach out to his supervisor, Joel Philips. Philips told Delach that Lindy
did not plan to recall him without explanation.
Delach asked his union, Local No. 341–IBT (Local 341), to intervene. Union
President Joseph Podolak contacted Lindy on Delach’s behalf, but Lindy again declined
to explain its decision. So Podolak consulted Local 341’s lawyer, Joe Pass, who advised
Podolak that Lindy’s action complied with the Collective Bargaining Agreement between
Local 341 and the Constructors Association of Western Pennsylvania, of which Lindy is
a member. Article XII, Section 3 of the CBA establishes a seniority system for the hiring
and rehiring of employees:
In the reduction of the work force due to the slackness of work, the last
Employee hired shall be the first Employee laid off, providing the remaining

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Employees are qualified to perform the available work. In rehiring, the last
Employee laid off shall be the first Employee rehired, providing he is
qualified to perform the available work.
App. 38. But that provision is subject to Section 9, which places limitations on the
seniority system:
Seniority shall be broken or lost by the occurrence of any of the following
events:
a. Voluntary quit.
b. Discharge for just cause.
c. Unauthorized leave of absence.
d. Unauthorized failure to report for work when scheduled for work.
e. Working while under the influence of alcohol or drugs taken unless
prescribed by a physician.
f. Failure to follow the instructions of company supervisor.
g. Performance of any act of dishonesty.
h. Being negligent in the performance of assigned duties.
Seniority will be maintained for one month from date of lay-off. The Union
shall be notified immediately of any of the above incidents.
App. 39 (emphasis added).
Attorney Pass advised Local 341 that Delach no longer enjoyed the seniority
protections of Section 3 because he had been separated from Lindy for more than one
month by the time the 2023 spring paving season began. Relying on that advice, Local
341 initially declined to file a grievance on Delach’s behalf. It changed course in August
2023, belatedly filing a grievance for Delach. The Constructors Association denied the
grievance as untimely. Convinced that Delach’s grievances lacked merit, Local 341
declined to pursue arbitration.
Delach sued Lindy and Local 341 in a hybrid action under the LMRA. He claimed
that Lindy violated Article XII, Section 9 of the CBA by failing to recall him for the 2023

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spring paving season. He also asserted a violation of Article XV, Section 7 of the CBA
because Lindy failed to give his union notice and an explanation for its decision. Finally,
Delach alleged that Local 341 breached its duty of fair representation by refusing to file
timely grievances in response to those CBA violations. Lindy and Local 341 filed
motions to dismiss, which the District Court granted. Delach timely appealed.
II1
A
To prevail on a hybrid claim under Section 301 of the LMRA, 29 U.S.C. § 185,
the plaintiff has to prove “two causes of action.” DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 164 (1983). He must establish that: (1) his employer violated its collective
bargaining agreement; and (2) his union breached its duty of fair representation. Id.
Because these claims are “inextricably interdependent,” the plaintiff has to prove both to
prevail against either defendant. Id. at 164–65. So it is not enough for Delach to allege a
breach of the CBA; he must also show that Local 341 acted arbitrarily, discriminatorily,
or in bad faith while handling his grievances under that agreement. See Vaca v. Sipes, 386
U.S. 171, 190 (1967).
1 The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 185, and we
have jurisdiction under 28 U.S.C. § 1291. “We review a district court’s ruling granting a
motion to dismiss de novo,” accepting “all factual allegations in the complaint” as true.
Hickey v. Univ. of Pittsburgh, 81 F.4th 301, 308 (3d Cir. 2023).

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B
Delach claims Local 341 breached its duty of fair representation by mishandling
two grievances. The first concerned Lindy’s failure to rehire him as a seasonal truck
driver. Delach insists that, by ignoring longstanding company practices, Local 341
misread Article XII, Section 9 of the CBA, which caused it to arbitrarily delay filing a
grievance on his behalf. We disagree.
Soon after it learned that Lindy declined to recall Delach, Local 341 conferred
with a company representative and consulted Pass, the union’s lawyer. Pass provided a
plausible interpretation of the CBA that, if correct, would preclude Delach from obtaining
relief from Lindy. Even if Delach is correct that Pass did not consider company practices
in reaching his conclusion, that omission was, at most, an error in judgment. But “mere
negligence” is not enough to state a claim for a breach of the duty of fair representation.
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372–73 (1990). So the complaint
does not plausibly allege that Local 341 breached its duty of fair representation by any
mishandling of Delach’s grievance for alleged violations of Article XII, Section 9.
Delach next argues that Local 341 mishandled his grievance concerning Lindy’s
notice obligations. Because Lindy did not provide notice or an explanation for any of its
adverse employment decisions, Delach claims it violated Article XV, Section 7 of the
CBA:
The Contractor (or his Representative) agrees before laying off or
discharging the Job Steward, for cause, he shall notify the Union of his
intention to do so two full working days prior to such lay-off or discharge

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and upon request of the Union he shall show cause for such layoff or
discharge.
App. 41. Lindy’s alleged breach, Delach says, obligated Local 341 to file a grievance on
his behalf, and its failure to do so was an arbitrary omission in violation of its duty of fair
representation. We are unpersuaded.
Local 341 read Section 7 to require notice and an explanation only when Lindy
discharges employees “for cause,” App. 41, a reading it says reflects industry custom for
seasonal employees. Because Delach’s layoff was a routine workforce reduction, the
union believed Delach had no right to notice or an explanation under Section 7. We need
not decide whether that is the best interpretation of Section 7; it suffices to conclude that
Local 341 did not act arbitrarily when it reached that conclusion. See Bazarte v. United
Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970). Delach therefore did not plausibly
allege that Local 341 breached its duty of fair representation by declining to file a
grievance for alleged violations of Article XV, Section 7.2
* * *
For the reasons stated, we will affirm the District Court’s order granting
Defendants’ motions to dismiss.
2 Because we conclude that Delach’s complaint did not plausibly allege a breach of Local
341’s duty of fair representation, we need not decide whether Lindy violated the terms of
the CBA.

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