Cannon v. Kroger Co., C-86-334-WS.

• Decision Date: 07 November 1986
• Docket Number: No. C-86-334-WS.,C-86-334-WS.
• Citation: 647 F. Supp. 82
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Dorothy R. CANNON, Plaintiff, 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 No. 305, AFL-CIO, and United Food and Commercial Workers Union Local 400, Defendants.

647 F. Supp. 82

Dorothy R. CANNON, Plaintiff, 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 No. 305, AFL-CIO, and United Food and Commercial Workers Union Local 400, Defendants.

No. C-86-334-WS.

United States District Court, M.D. North Carolina, Winston-Salem Division.

November 7, 1986.

James J. Booker and Richard M. Durham, Winston-Salem, N.C., for plaintiff.

Charles F. Vance, Jr., Winston-Salem, N.C., for defendants.

MEMORANDUM OPINION

ERWIN, District Judge.

This matter is before the court on motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by defendants Kroger Company (Kroger), United Food and Commercial Workers (UFCW) International Union, UFCW Union Local 278, and UFCW Union Local 400. All parties have briefed the motion, and argument was heard in Greensboro on October 9, 1986. The case is now ready for a ruling.

In this case, plaintiff has sued the defendants in a hybrid action, alleging both breach of contract and breach of the duty of fair representation, pursuant to 29 U.S.C. § 185. Movants ask the court to dismiss on the grounds that the claim is time-barred pursuant to 29 U.S.C. § 160(b). Movants pursue two theories in this regard, arguing that the complaint was not timely filed or, alternately, that service was impermissibly late.

The facts disclose that plaintiff was employed by defendant Kroger from 1981 until September 7, 1985. Two successive collective bargaining agreements controlled the terms and conditions of plaintiff's employment with Kroger. The first collective bargaining agreement was executed between Kroger and UFCW Union Local 305 and was effective from December 23, 1979 through January 22, 1983. United Food and Commercial Workers Union Local 400 is the successor in interest to UFCW Union Local 305. The second contract was executed between Kroger and UFCW Union Local 278 and was effective from January 23, 1983 through October 25, 1986. Plaintiff alleges that Kroger violated the collective bargaining agreements by paying white male workers higher wages than allowed for in the collective bargaining agreements and by asking the plaintiff to perform duties outside the scope of her job description, which were in violation of various safety rules, regulations, and practices. The plaintiff contends that the unions breached their duties of fair representation by failing to protect or insulate her from the discriminatory treatment after she had presented her grievances to these defendants. She complains further that UFCW Union Local 278 further breached its duty of fair representation by acting ineptly, arbitrarily, and capriciously.

On September 7, 1985, plaintiff left the employment of Kroger. On March 7, 1986, the plaintiff through counsel applied for an extension of time to file her complaint. On that date, an assistant clerk of Superior Court for Forsyth County signed an order giving plaintiff until March 27, 1986 to file the complaint pursuant to Rule 3 of the North Carolina Rules of Civil Procedure. On March 27, 1986, the plaintiff filed her complaint in the Superior Court of Forsyth County. On April 16, 1986, the defendant Kroger filed with this court a petition for removal from state court. The remaining defendants joined in Kroger's petition for removal on April 24, 1986.

The Supreme Court has held that the statute of limitations in such hybrid cases is the same as the statute of limitations found in Section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b). DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), see also Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983), cert. denied, 469 U.S. 916, 105 S.Ct. 292, 83 L.Ed.2d 228 (1984). Title 29, United...