Macon v. ITT Continental Baking Co., Inc.

• Decision Date: 23 December 1985
• Docket Number: No. 83-3197,83-3197
• Citation: 121 L.R.R.M. 2186,779 F.2d 1166
• Parties: 121 L.R.R.M. (BNA) 2186, 104 Lab.Cas. P 11,744, 5 Fed.R.Serv.3d 283 Walter MACON, Plaintiff-Appellant, v. ITT CONTINENTAL BAKING CO., INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1166

779 F.2d 1166

121 L.R.R.M. (BNA) 2186, 104 Lab.Cas. P 11,744,

5 Fed.R.Serv.3d 283

Walter MACON, Plaintiff-Appellant, v. ITT CONTINENTAL BAKING CO., INC., et al., Defendants-Appellees.

No. 83-3197.

United States Court of Appeals Sixth Circuit.

Argued April 2, 1985.

Decided Dec. 23, 1985.

Farris E. Williams (argued), Jones, Williams & Associates Co., L.P.A., East Cleveland, Ohio, for plaintiff-appellant.

George H. Faulkner (argued), Janet Maher, Timothy Sheeran (argued), Squire, Sanders and Dempsey, Cleveland, Ohio, for defendants-appellees.

Before ENGEL and KEITH, Circuit Judges and COHN, District Judge. ^*

ENGEL, Circuit Judge.

Intervening decisions of the Supreme Court and in our circuit have reduced the issues in this appeal to one: does the six-month limitation upon hybrid 301/fair representation suits borrowed from section 10(b) of the National Labor Relations Act borrow as well the requirements that both filing and service of the complaint be accomplished within the six-month period? We answer in the negative and hold that such actions are instead governed by the filing and service requirements under the Federal Rules of Civil Procedure generally applicable to civil suits in the district court. Accordingly we reverse and remand.

Walter Macon was employed as a route sales representative by appellee ITT Continental Baking Company, Inc. (ITT) from June 16, 1973, until he was discharged on November 18, 1981. As a route sales representative, Macon was within the bargaining unit covered by the collective bargaining agreement between ITT and appellee Bakery Drivers' Union Local 52, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Local 52 or Union).

On October 26, 1981, members of ITT management met with Macon and William Evans, Local 52's secretary/treasurer, and informed them that an ITT customer had alleged that Macon had been overcharging him for deliveries. Macon was also told that such overcharging, if verified, would constitute "dishonesty" under the collective bargaining agreement and would, therefore, subject him to possible sanctions, including discharge without a prior hearing. Macon was suspended pending further investigation.

On November 18, 1981, a second meeting was held, attended by ITT management, Macon, Evans, two Union stewards, and Macon's attorney. ITT representatives informed Macon that their investigation had confirmed the overcharging complaint and had uncovered a second complaint of irregular charging. Macon was then told that he was being terminated for dishonesty.

On May 18, 1982, exactly six months after his discharge, Macon filed a complaint in the United States District Court for the Northern District of Ohio against ITT and Local 52 under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185, claiming that his discharge violated the ITT-Local 52 collective bargaining agreement and that Local 52 had breached its duty of fair representation. Service of the complaint upon the Company and Local 52 was made after the expiration of the six-month period but well within the 120 days prescribed by Rule 4(j) of the Federal Rules of Civil Procedure. Appellees filed motions to dismiss or, in the alternative, for summary judgment. On February 17, 1983, the district court granted the motions to dismiss, concluding that Macon's claim was barred by Ohio's ninety-day statute of limitations for vacation of arbitration awards, Ohio Rev.Code Sec. 2711.13. The court also granted the defendants' summary judgment motions on the ground that no genuine issue of material fact remained.

On appeal, Macon contends that under DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the six-month statute of limitations of section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(b), applies and that his claim was, therefore, timely filed. ITT and Local 52 argue that DelCostello should not be retroactively applied here. They further state that even if the statute of limitations contained in section 10(b) is used here, Macon's suit was not timely because the defendants were not served within the six-month period as section 10(b) requires. See Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir.1984). ¹

I.

The trial judge's decision came prior to the Supreme Court's decision in DelCostello v. International Brotherhood of Teamsters, which holds that the six-month limitations period of section 10(b) of the NLRA, 29 U.S.C. Sec. 160(b), is applicable to hybrid section 301/fair representation suits. Hybrid suits, such as those in DelCostello and here, involve allegations of a breach of the collective bargaining agreement by the employer and a breach of the duty of fair representation by the union, both in violation of section 301 of the LMRA, 29 U.S.C. Sec. 185.

In DelCostello, the Supreme Court concluded that in hybrid actions application of the most nearly analogous state limitation statutes "suffer[s] from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid Sec. 301/fair representation litigation." 462 U.S. at 165, 103 S.Ct. at 2281. The Court, therefore, decided to borrow instead the federal statute of limitations contained in section 10(b) of the NLRA, 29 U.S.C. Sec. 160(b). Id. at 169, 103 S.Ct. at 2293.

Section 10(b) establishes a six-month period for filing unfair labor practice charges with the National Labor Relations Board (NLRB). It provides in pertinent part:

(b) Whenever it is charged that any person had engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no 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, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.

29 U.S.C. Sec. 160(b) (emphasis added).

Under the Supreme Court's holding in DelCostello, the six-month period of section 10(b) is applicable to the instant case. While appellees have argued that DelCostello should not be applied retroactively here, in Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.1984), the Sixth Circuit sitting en banc held that DelCostello would be retroactively applied to cases such as this.

The only limitations question therefore remaining for us is whether Macon's suit was timely under DelCostello and section 10(b). It is undisputed that, although Macon's complaint was filed within the six-month period, service of process was effected only after the six-month period had expired.

Our circuit in Mohler v. Miller, 235 F.2d 153, 154-55 (6th Cir.1956), recognized the general rule applicable to civil actions.

Under Rules 3 and 4, Federal Rules of Civil Procedure, 28 U.S.C.A., an action is commenced by the filing of a complaint, the issuance forthwith by the clerk of a summons and its delivery to the marshal for service. It is the filing of the complaint, when followed by the lodging of the writ with the marshal, that tolls the statute of limitations.

See also United States v. Wahl, 583 F.2d 285, 288 (6th Cir.1978). Thus, under this general rule, Macon's suit was timely insofar as it was filed within the limitations period even though service of process was not had within that period.

The company and the union contend, however, that under the statutory language of section 10(b) Macon's complaint had to be both filed and served within the six-month period if the running of the statute of limitations was to be tolled effectively. Their position is supported by several decisions, primarily from the Eleventh Circuit.

In Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir.1984), the Eleventh Circuit held that a mixed 301 suit is timely only when the plaintiff files and serves his complaint within the six-month period of section 10(b):

As a general rule, an action is "commenced" in federal court by the filing of a complaint. See Caldwell v. Martin Marietta Corp., 632 F.2d 1184, 1188 (5th Cir.1980). The general rule expressed governs when the statute of limitations merely requires that an action be "brought," "commenced," or "initiated" within a specified time. Here, however, Section 10(b) expressly requires both filing and service within a six months period.

[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).

The plaintiff argues that Sec. 10(b)'s service requirement is an administrative rule promulgated by the National Labor Relations Board for administrative procedures and should not apply in judicial proceedings. The limitations period was "borrowed" from the provision that applies to proceedings before the National Labor Relations Board, however, see DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The service of process requirement is part of the express statutory provision. There is no reason why the six-month period would be borrowed and the filing and service would be left to the general rule. N.L.R.B. v. Local 264, Laborer's International Union, 529 F.2d 778, 782 (8th...