This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Joeffre Kolosky,





AFSCME Local 1164,



Filed July 22, 2003


Halbrooks, Judge



Hennepin County District Court

File No. MC01019595



Joeffre Kolosky, 7018 Brooklyn Blvd., #7, Minneapolis, MN 55429 (pro se appellant)


Gregg M. Corwin, Amanda R. Cefalu, Gregg M. Corwin & Associates Law Office, P.C., 1660 South Highway 100, Suite 508E, St. Louis Park, MN 55416 (for respondent)



            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s determination that he failed to state a claim upon which relief may be granted and argues that the district court abused its discretion by denying his motion for default judgment.  Because appellant did not set forth a legally sufficient claim for relief and because the district court did not abuse its discretion in denying appellant’s motion for a default judgment, we affirm.


            On January 28, 2000, Fairview University Medical Hospital (Fairview) terminated appellant Joeffre Kolosky from his employment as a distribution worker in the Materials Management Department.  Kolosky’s employment was governed by the collective bargaining agreement entered into by respondent AFSCME Council 6, Local 1164 (AFSCME), and Fairview.  Fairview terminated Kolosky for an ongoing behavioral pattern of threatening and disruptive behaviors.  Kolosky filed a grievance, and Kolosky’s union, AFSCME, challenged his discharge, claiming that it was not for just cause and that there were numerous mitigating and extenuating circumstances that favored Kolosky.  On March 5, 2001, the arbitrator concluded that Kolosky was discharged for just cause and denied the grievance. 

            Kolosky requested that AFSCME appeal the arbitration award.  AFSCME did not agree to be party to the appeal because language in the contract between AFSCME and Fairview stated that the arbitrator’s decision would be final and binding on all parties.  On December 5, 2001, Kolosky served a complaint against AFSCME on Marvin White, a former union steward for AFSCME.  In his later affidavit, White stated that he informed AFSCME’s president, Jerry Zeah, that Kolosky had served him with a complaint.  Zeah asked that the complaint be mailed to AFSCME, but White did not mail the complaint until approximately two months later, in February 2000.  White stated that this delay was due to his preoccupation with his mother’s illness during those months.  Kolosky filed a motion for a default judgment in March 2002.  Two weeks later, AFSCME filed a motion to dismiss.  On November 14, 2002, the district court issued an amended order granting AFSCME’s motion to dismiss and denying Kolosky’s motion for a default judgment. 




Kolosky argues that the district court erred by determining that he failed to state a claim upon which relief may be granted and by granting AFSCME’s motion to dismiss.  In reviewing cases that are dismissed for failure to state a claim, the only question before the reviewing court “is whether the complaint sets forth a legally sufficient claim for relief.”  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). 

            Kolosky alleges that AFSCME acted negligently and breached its duty of fair representation.  The Public Employment Relations Act imposes the duty of fair representation upon a union.  See Minn. Stat. § 179A.04 (2002); Eisen v. Minnesota Dep’t of Welfare, 352 N.W.2d 731, 735 (Minn. 1984).  This duty stems “from a union’s statutory right to act as the exclusive bargaining representative of all employees in a designated bargaining unit.”  Id.

To establish a breach of that duty requires proof of arbitrary or bad faith conduct on the part of the union by substantial evidence of fraud, deceitful action or dishonest conduct.


Davis v. Boise Cascade Corp., 288 N.W.2d 680, 683 (Minn. 1979) (quotation omitted).  Moreover, “an individual employee may not appeal an unfavorable award where the union expressly determines not to appeal.”  Eisen, 352 N.W.2d at 736.  But “[courts] have concluded repeatedly that mere negligent conduct on the part of a union does not constitute a breach of the union’s duty of fair representation.”  Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985).  Courts should defer to the union’s judgment in determining whether the union will pursue a particular grievance.  Id.

Kolosky first contends that AFSCME acted negligently.  But because negligence on the part of the union does not constitute a breach of the union’s duty of fair representation, this theory will not stand.  Id.  Kolosky then argues that AFSCME breached its duty of fair representation and acted in bad faith by refusing to represent him in an appeal.  As established in Eisen, a union, and not an individual member, has standing to appeal a complaint.  352 N.W.2d at 736.  And a union also has the right to enter into contracts on behalf of its members.  Id.  Here, AFSCME limited its ability to appeal by entering into a contract on behalf of its employee members such as Kolosky.  The contract provides that the union will participate in arbitration and that the result of the arbitration will be final and binding on the employer, the union, and the employee member of the union.  AFSCME did not act in bad faith by following the contractual terms and refusing to bring an appeal on behalf of Kolosky.  See Peterson, 771 F.2d at 1253 (noting that courts should defer to the union’s judgment in determining whether it will pursue a particular grievance).

            Kolosky also contends that AFSCME breached its duty of fair representation by acting fraudulently because the president of the local union filed a complaint against Kolosky, the president allegedly never signed that complaint, and the arbitrator relied heavily on the president’s complaint against Kolosky in reaching a decision.  But other than Kolosky’s allegation, there is no “substantial” evidence of fraud, and no evidence that the arbitrator relied heavily on the president’s complaint.  See Davis, 288 N.W.2d at 683 (holding that a breach of the duty of fair representation is established only through substantial evidence of fraud, deceitful action, or dishonest conduct).  To the contrary, there is no more than a brief note of the incident and ample evidence of other incidents on which the arbitrator could have based his decision. 

Kolosky also claims that AFSCME acted in bad faith by failing to provide the arbitrator with certain documents beneficial to Kolosky.  But the record shows that AFSCME raised nine issues in Kolosky’s favor, suggesting that they did not in any way act in bad faith.  The record contains documented evidence of Kolosky’s threatening and disruptive behaviors and also shows that Kolosky admitted that he engaged in threatening behavior on several occasions.  Given this record, any omission by AFSCME would, at most, rise to the level of negligence, which is not actionable.  Peterson, 771 F.2d at 1253. 

We conclude that the court had sufficient evidence from which to find that Kolosky was dismissed for just cause and that Kolosky did not set forth a legally sufficient claim for relief.



Kolosky contends that the district court abused its discretion by denying his motion for a default judgment.  A default judgment may be entered against a party for failure to plead or otherwise defend within the timeline established by law.  Minn. R. Civ. P. 55.01.  The district court may relieve a party from a final judgment based on “[m]istake, inadvertence, surprise, or excusable neglect” or “[a]ny other reason justifying relief from operation of the judgment.”  Minn. R. Civ. P. 60.02(a), (f). 

A trial court’s action permitting a party to serve or file a pleading after expiration of a time limit is discretionary and will not be reversed unless the discretion has been abused.


Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980) (citations omitted); see Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993) (noting court has discretion in ruling on a motion to vacate); Guillaume & Assoc., Inc. v. Don-John Co., 371 N.W.2d 15, 18 (Minn. App. 1985) (noting factors court considers on motion to vacate are substantially the same as those considered in determining whether to grant default).  We review the record in the light most favorable to the district court’s decision.  Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn. App. 2000).

            A court may grant relief from a default judgment or may deny a motion for default where the party demonstrates (1) a reasonable defense on the merits; (2) that there exists a reasonable excuse for failure or neglect to answer; (3) that the party acted with due diligence after notice of the motion for default judgment; and (4) that no substantial prejudice will result if the action is reopened.  Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 601 (Minn. 1982); Coller, 294 N.W.2d at 715.  “The moving party bears the burden of proving all four of the elements, including lack of prejudice.”  Imperial Premium Fin., 603 N.W.2d at 857.  A strong showing on three of the four factors can outweigh a weak showing on one.  Valley View, Inc. v. Schutte, 399 N.W.2d 182, 185-86 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987).  “Generally, courts favor a liberal application of the [] test to further the policy of resolving cases on their merits.”  Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. June 2, 1994).

            First, AFSCME presented a reasonable defense on the merit of the claims against it.  Because we conclude that Kolosky failed to establish that AFSCME breached its duty of fair representation, we find that the district court did not abuse its discretion in concluding that “even assuming all of Plaintiff’s allegations to be true, [Kolosky’s] complaint should be dismissed” based on Kolosky’s failure to state a claim.

Second, Kolosky argues that, because AFSCME had knowledge of the complaint on the day that it was served on White, there was no reasonable excuse for AFSCME’s delay in answering.  The district court recognized that White “was instructed” to mail the complaint to AFSCME, implying that someone other than White knew of the complaint.  But there was no evidence of intentional delay.  Instead, the evidence shows that White did not forward the complaint in a timely way because he was distracted for a period of months by his mother’s poor health. 

Third, Kolosky argues that AFSCME did not act with due diligence because AFSCME received the motion for default judgment on February 25, 2002, but did not file its motion to dismiss until 15 days later on March 12, 2000.  A reasonable time is determined on a case-by-case basis.  Sommers v. Thomas, 251 Minn. 461, 466-67, 88 N.W.2d 191, 195-96 (1958).  This court has held that a motion to vacate brought within weeks has satisfied that due-diligence requirement.  Lund v. Pan Am. Machs. Sales, 405 N.W.2d 550, 554 (Minn. App. 1987).  But three months has also been held to be reasonable in satisfaction of the due-diligence test.  Kemmerer, 513 N.W.2d at 841.  The district court concluded that even given this 15-day delay, AFSCME “acted promptly.”  We conclude that on this record and in light of the law in Minnesota, the district court did not abuse its discretion in concluding that AFSCME met the due-diligence test.