Kalombo v. Hughes Market Inc.

• Decision Date: 25 September 1989
• Docket Number: No. 87-6399,87-6399
• Parties: 132 L.R.R.M. (BNA) 2550, 113 Lab.Cas. P 11522A Kabeya KALOMBO, Plaintiff-Appellant, v. HUGHES MARKET INC.; Local 399 Hospital and Service Employees Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 258

886 F.2d 258

132 L.R.R.M. (BNA) 2550, 113 Lab.Cas. P 11522A

Kabeya KALOMBO, Plaintiff-Appellant, v. HUGHES MARKET INC.; Local 399 Hospital and Service

Employees Union, Defendants-Appellees.

No. 87-6399.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 30, 1989.

Decided Sept. 25, 1989.

Harold Cotton, Woodland Hills, Cal., for plaintiff-appellant, Kalombo.

Howard Z. Rosen, Posner & Rosen, Los Angeles, Cal., for defendants-appellees, Hosp. & Service Employees Union, Local 399.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and NELSON, Circuit Judges, and PATEL, ^* District Judge.

ALARCON, Circuit Judge:

Kabeya Kalombo appeals from the dismissal with prejudice under 29 U.S.C. Sec. 185 of his claim of breach of the duty of fair representation against the Hospital and Services Employees Union Local 399 (Union). The district court dismissed the action on the ground that the claim against the Union was barred by the six months statute of limitations set forth in Section 10(d) of the National Labor Relations Act. 29 U.S.C. Sec. 160(d) (1982) (NLRA). Kalombo's action was filed more than one year after the date he alleged that the Union breached its duty to him. Kalombo claims that the appropriate period of limitations is the four-year statute governing breach of contract actions under California law. We disagree.

I.

In Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court concluded that the six-month period for making charges of unfair labor practice to the National Labor Relations Board contained in section 10(b) of the NLRA should be applied to a claim filed in a federal district court for a breach of a union's duty of fair representation. Id. at 159 n. 12, 103 S.Ct. at 2287 n. 12. In Conley v. Int'l Bhd of Elec. Workers, 810 F.2d 913 (9th Cir.1987), we held that the statute of limitations for a section 185 action is six months. Id. at 915.

Kalombo argues that Del Costello and Conley are inapplicable to his claim because he alleged facts showing that the Union was guilty of collusion with his employer's decision to terminate his employment solely because of his race. Kalombo asserts that "[t]he claim against defendant LOCAL 399 was, in essence, a claim for breach of contract." Appellant's Opening Brief, page 3. Kalombo's complaint alleges in Paragraph 24, however, that "[t]his is a claim for breach of the duty of fair representation by a union member against his union based on 29 U.S.C. Sec. 185." Kalombo cites no authority for the proposition that the period of limitation for breach of the duty of fair representation should vary depending upon the nature of the employer's unfair labor practice. We can find nothing in Del Costello or Conley that supports Kalombo's novel argument. We decline Kalombo's invitation to adopt a rule that would permit varying statutes of limitation for a claim of breach of the duty of fair representation under section 185 depending solely upon the facts pleaded in the complaint. The chaos that would flow from such a doctrine would undo the certainty in the applicable statute of limitations achieved by the Supreme Court in Del Costello.

II.

The Union asks that we impose sanctions against Kalombo's counsel for (1) failure to include the complaint in the excerpts of record as required by Circuit Rule 30-1....