FRED JAMES DUNLAP, PLAINTIFF-APPELLANT,
v.
LOCKHEED-GEORGIA COMPANY, AERONAUTICAL MACHINISTS LOCAL 709 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DEFENDANTS-APPELLEES
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The court held that a hybrid breach of contract/duty of fair representation claim under the National Labor Relations Act requires both filing and service of the complaint within the six-month statute of limitations.
Plaintiff filed a labor action after his union and employer refused to prosecute his grievances. The plaintiff was rehired in 1981, filed grievances r…
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PER CURIAM:
The district court granted defendants’ motion for summary judgment in this labor action because plaintiff’s complaint was not both filed and served within the applicable six-month statute of limitations contained in Section 10(b) of the National Labor Rela-turns Act, 29 U.S.C.A. § 160(b). Plaintiff appeals. We affirm.
Plaintiff was laid off by Lockheed on August 15, 1972. His seniority rights with T ,, ’ , . / f. Lockheed were to expire under the pertinent collective bargaining agreements if he was not recalled within 48 months of the date he was laid off. Plaintiff was rehired jn June of 1981. Discovering that some employees with less seniority than he had retained their seniority rights, plaintiff fned a grievance on June 17, 1981. A second grievance was filed in July. The Union decided not to prosecute his griev-anee on August 20,1981. Lockheed agreed on same date, and because neither his union nor his employer agreed to prosecute, plaintiff’s case was not taken to arbitration.
While plaintiff did not receive formal written notice of the Union’s decision until September 10, 1981, the record indicates he knew of the Union’s final decision shortly after it was made on August 20, and before the written confirmation of September 10. Plaintiff filed this action on March 9, 1982. Lockheed was served on March 16, 1982. The Union was served on March 29, 1982.
Our decision in this case is controlled by Howard v. Lockheed-Georgia Co., 742 F. 2d 612 (11th Cir.1984), and Simon v. Kroger Co., 743 F. 2d 1544 (11th Cir.1984). Both of these cases, on facts substantially the same as those here, held that the applicable limitation statute requires both the filing and service of the complaint within six months of the cause of action’s accrual. Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), held the following six-month statute controls a hybrid breach of contract/duty of fair representation claim, the type of claim at issue here:
[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made____
29 U.S.C.A. § 160(b).
Even if plaintiff’s claim did not expire until March 9, 1982, it is undisputed that neither the Union nor the company was served within the limitations period. Lockheed was not served until March 16, the Union March 29. The district court’s decision to grant defendants’ motion for summary judgment was correct.
AFFIRMED.
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West v. Conrail, 780 F.2d 361 (3d Cir. 1985)…re [*367] versed and the case remanded for further proceedings. . Defendants-Appellants cite two other cases that have held that DelCostello impliedly required both filing and service within the six-month period. See Dunlap v. Lockheed-Georgia Co., 755 F. 2d 1543 (11th Cir.1985); Thompson v. Ralston Purina Co., 599 F.Supp. 756 (W.D.Mich.1984). Both of these cases, however, simply follow the earlier Eleventh Circuit decisions without further analysis. See Dunlap, 755 F. 2d at 1543-44, Thompson, 599 F.Supp. at…1 / 2
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Berry Gallon v. Levin Metals Corp., 779 F.2d 1439 (9th Cir. 1986)…d has consistently held that in addition to the filing requirement, the six-month service limitation of section 10(b) applies in hybrid cases. See Williams v. Greyhound Lines, Inc., 756 F. 2d 818, 820 (11th Cir.1985); Dunlap v. Lockheed-Georgia Co., 755 F. 2d 1543, 1544 (11th Cir.1985); Simon v. Kroger Co., 743 F. 2d 1544, 1546 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2155, 85 L.Ed.2d 511 (1985); Howard v. Lockheed-Georgia Co., 742 F. 2d at 614. We believe that the uniformity sought by the Court in…
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Williams v. Greyhound Lines, Inc., 756 F.2d 818 (11th Cir. 1985)…01 must be accomplished within a period of six months from the “unfair labor practice” complained of. Howard v. Lockheed Georgia Co., 742 F. 2d 612 (11th Cir.1984); Simon v. Kroger Co., 743 F. 2d 1544 (11th Cir.1984); Dunlap v. Lockheed Georgia Co., 755 F. 2d 1543 (11th Cir.1985). The record discloses in this case that, taking appellant’s theory as to when the time began to run as the time when he received notice of the action of the arbitrators, on March 6, 1983, it is clear that the suit was filed in the d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DelCOSTELLO v. Int'l Bhd. of Teamsters, 462 U.S. 151 (U.S. 1983)
- Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir. 1984)
- Simon v. Kroger Co., 743 F.2d 1544 (11th Cir. 1984)