Cannon v. Kroger Co., 278

• Decision Date: 29 January 1988
• Docket Number: No. 86-1720,No. 278,AFL-CIO,278,86-1720
• Citation: 832 F.2d 303
• Parties: 126 L.R.R.M. (BNA) 2968, 44 Empl. Prac. Dec. P 37,527, 56 USLW 2270, 107 Lab.Cas. P 10,208, 9 Fed.R.Serv.3d 722 Dorothy R. CANNON, Plaintiff-Appellant, v. The KROGER CO.; United Food and Commercial Workers (UFCW) Union Local; United Food and Commercial Workers International Union; United Food and Commercial Workers, Local 305,; United Food and Commercial Workers Union Local 400, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 303

832 F.2d 303

126 L.R.R.M. (BNA) 2968, 44 Empl. Prac. Dec. P

37,527,

56 USLW 2270, 107 Lab.Cas. P 10,208,

9 Fed.R.Serv.3d 722

Dorothy R. CANNON, Plaintiff-Appellant, v. The KROGER CO.; United Food and Commercial Workers (UFCW) Union Local No. 278; United Food and Commercial Workers International Union; United Food and Commercial Workers Local 305, AFL-CIO; United Food and Commercial Workers Union Local 400, Defendants-Appellees.

No. 86-1720.

United States Court of Appeals Fourth Circuit.

Argued June 3, 1987.

Decided Nov. 3, 1987.

Petition for Rehearing and Suggestion for Rehearing En Banc

Denied Jan. 29, 1988. ^*

Richard Monroe Durham (James J. Booker, P.A., Winston-Salem, N.C., on brief) for plaintiff-appellant.

Jeffrey Neil Young (Baptiste & Wilder, Washington, D.C., P.C. on brief); M. Ann Anderson (Charles F. Vance, Jr.; C. Daniel Barrett; Womble, Carlyle, Sandridge & Rice; Winston-Salem, N.C., Richard Roesel, United Food and Commercial Workers Intern. Union, Washington, D.C., on brief) for defendants-appellees.

Before HALL and WILKINSON, Circuit Judges, and SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

K.K. HALL, Circuit Judge:

Dorothy R. Cannon, plaintiff in a civil action alleging unfair labor practices by her former employer, The Kroger Company ("Kroger") and breach of the duty of fair representation by Locals 278, 305, and 400 of the United Food and Commercial Workers Union ("UFCW" or "the Unions") appeals an order of the district court dismissing her complaint as time barred, 647 F.Supp. 82. The district court held that the statute of limitations applicable to "hybrid" actions brought, in part, pursuant to Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 was violated by Cannon's failure to file a complaint within six months of the allegedly wrongful act. We affirm.

I.

Cannon, a black female, was employed by Kroger from 1981 until 1985 as a meat clerk in a store located in Winston-Salem, North Carolina. During her tenure with Kroger, the terms and conditions of her employment were governed by two successive collective bargaining agreements executed between Kroger and Locals 305 and 278 of the UFCW. ¹ Cannon resigned her position with Kroger on September 7, 1985.

On March 7, 1986, six months to the day after she left her position, Cannon sought to initiate a "hybrid" civil action for unfair labor practices and breach of the duty of fair representation against Kroger and the Unions in the Superior Court of Forsyth County, North Carolina. In commencing her action, Cannon employed a mechanism available under the North Carolina Rules of Civil Procedure but which has no counterpart in the Federal Rules. North Carolina Rule 3 allows a plaintiff to postpone filing a complaint by first making application to the court stating the nature and purpose of the action and requesting permission to file a complaint within 20 days. Cannon sought and was granted the extended time. Pursuant to the North Carolina rule, a summons was issued to Kroger and the Unions.

In her complaint ultimately filed on March 27, 1986, Cannon alleged that during her period of employment, Kroger regularly granted wage increases to white, male employees in excess of the collective bargaining agreement while limiting her to the amount specified in the agreement. She further alleged that Kroger required her to perform additional duties in violation of safety rules and established company procedures. Finally, she maintained that the Unions' failure to defend her from Kroger's intolerable and discriminatory acts left her with no alternative but to resign her position.

Following receipt of the complaint, Kroger and the Unions removed the action to federal district court. The defendants then moved to dismiss Cannon's complaint on the ground that it was neither filed nor served within the six-month statute of limitations derived from Sec. 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b). ² The district court granted the motion for dismissal with prejudice pursuant to Fed.R.Civ.P. 12(b)(6), reasoning that Cannon's failure to file a complaint within six months of her resignation rendered her action untimely. The court further held that the statutory period could not be extended by the alternative means of commencing an action available under North Carolina law.

This appeal followed.

II.

The cause of action asserted by Cannon is popularly known as a "hybrid" Sec. 301/fair representation claim. The gravamen of such an action is the assertion that an employer has breached its contractual obligations toward an employee under the collective bargaining agreement in violation of Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 and that the employee's union, by failing to protect its member's rights, has failed to satisfy the duty of fair representation implied by the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. Clearly, both components of this "hybrid" cause of action involve rights created by federal statute.

On appeal, Cannon contends that her action below did not violate the six-month statute of limitations applied by the Supreme Court to "hybrid" Sec. 301/fair representation claims in DelCostello v. International Bro. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). She argues that DelCostello required only that a "hybrid" action be commenced within six months of the alleged wrongful act but did not specify commencement in accordance with the Federal Rules of Civil Procedure. In Cannon's view, her timely compliance with the appropriate state procedures for initiating a civil action satisfied the dictates of DelCostello. Alternatively, appellant contends that the summons issued on March 7, 1986, pursuant to the North Carolina Rules, was the functional equivalent of a complaint under Fed.R.Civ.P. 8(a), thereby tolling the statutory limitation period on that date. We disagree with both of appellant's contentions.

A "hybrid" civil action in which an employee alleges wrongdoing by both his employer and his union necessarily intrudes into those "consensual processes that federal labor law is chiefly designed to promote--the formation of the ... agreement and the private settlement of disputes under it." (citations omitted.) DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294, quoting United Parcel Service v. Mitchell, 451 U.S. 56, 70-71, 101 S.Ct. 1559, 1568, 67 L.Ed.2d 732 (1981). Striking a balance between the rights of an aggrieved employee and the substantial federal labor policies at stake demands the application of uniform national procedures. 462 U.S. at 171-72, 103 S.Ct. at 2294.

The Court in DelCostello admittedly did not expressly hold that a plaintiff in a "hybrid" action is required to commence an action by filing a complaint in accordance with Fed.R.Civ.P. 3 in order to toll the limitation period. The Court's announced goal of uniformity would be severely undercut, however, if alternative means of computing elapsed time were available. Moreover, in the recent decision in West v. Conrail, --- U.S. ----, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), the Supreme Court clearly relied upon the Federal Rules to resolve a dispute regarding the six-month limitation period. ³

After West, there can be no question that commencement of a "hybrid" claim brought in district court is to be assessed in accordance with the Federal Rules of Civil Procedure. Unlike appellant, we can perceive no justification for allowing a different result simply because the underlying action is initiated in a state court. The substantive rights involved remain purely federal in nature. Moreover, the choice of a forum in no way diminishes the subtle balance of interests noted in DelCostello as a justification for uniformity. The application of alternative state law procedures must inevitably intrude into the balance and threaten the goal of uniform adjudication. We conclude, therefore, that the statute of limitations applicable to "hybrid" actions runs until the action is properly commenced under the dictates of the Federal Rules of Civil Procedure.

III.

Appellant's alternative contention that the state summons issued pursuant to North Carolina Rule 3 was somehow equivalent to a complaint under the Federal Rules is unpersuasive. ⁴ A valid complaint under the Federal Rules must satisfy, inter alia, the demands of Rule 8(a)(2) by including a "plain statement of the claim showing that pleader is entitled to relief." The state summons issued to defendants below fell significantly short of this requirement.

Under the most liberal interpretation the summons stated nothing more than a conclusory allegation that defendant Kroger had forced Cannon to quit her job. There was absolutely no identification of any...