West v. Conrail

Decision Date06 December 1985
Docket NumberNo. 85-5129,No. 2906,2906,85-5129
Citation780 F.2d 361
Parties121 L.R.R.M. (BNA) 2215, 104 Lab.Cas. P 11,740, 3 Fed.R.Serv.3d 538 Thomas WEST, Appellant, v. CONRAIL, a Foreign Corporation; Brotherhood of Maintenance of Way Employees, Local, a Foreign Corporation; New Jersey Transit, A Corporation of the State of New Jersey; and Anthony Vincent. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Louis B. Youmans, Allen K. Mukaida, Trenton, N.J., for appellant.

Irwin I. Kimmelman, Atty. Gen. N.J., Robert H. Stoloff, Deputy Atty. Gen., Newark, N.J., for appellee New Jersey Transit Corp.

Lucy S.L. Amerman, Consol. Rail Corp., Philadelphia, Pa., for appellee Consol. Rail Corp.

J. Charles Sheak, Brener, Wallack & Hill, Princeton, N.J., William Birney, Highsaw & Mahoney, Washington, D.C., Louis P. Malone, III, Gen. Counsel, Brotherhood of Maintenance of Way Employees, Washington, D.C., for appellee Brotherhood of Maintenance of Way Employees.

Before ADAMS, GIBBONS, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Appellant filed a complaint with the District Court on September 24, 1984, alleging a hybrid breach of contract/breach of the duty of fair representation claim against his employer-railroad, his union, and a union representative. The parties agree, for purposes of this appeal, that the appellant's cause of action accrued on March 25, 1984. Appellant thus filed his complaint within six months of the accrual of his cause of action. Appellant, however, failed to mail his complaint to the defendants until October 11, 1984.

In Sisco v. Conrail, 732 F.2d 1188 (3d Cir.1984), we held that the six-month statute of limitations period of Section 10(b) of the National Labor Relations Act applied to a claim of unfair representation brought under the Railway Labor Act, 45 U.S.C. Secs. 151-188 (1976). We there followed DelCostello v. Intl. Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which applied the limitations period of 10(b) to hybrid section 301/fair representation actions. The parties agree that 10(b) governs this complaint. They disagree, however, on whether service of process must occur within six months of the accrual of the cause of action or whether filing the complaint tolls the limitations period. The court below determined that both filing and service of process must be completed within six months, and consequently granted defendants' motions for summary judgment. We affirm.

Section 10(b) provides: "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" (emphasis supplied). Thus, under 10(b) the filing of the complaint with the National Labor Relations Board does not toll the limitations period. Instead, a copy of the charge must also be served on the defendants within the limitations period; service may be accomplished simply by mailing the copy. See 29 C.F.R. Sec. 102.113(a) (1984). In contrast, the general rule for a federal suit is that the

action is commenced, and the statute of limitations tolled, upon the filing of the complaint. See, e.g., Hobson v. Wilson, 737 F.2d 1, 44 (CADC 1984); Fed.Rule Civ.Proc. 3; 2 J. Moore & J. Lucas, Moore's Federal Practice p 3.07[4.-3-2] (1984). While the time for service of process is not open-ended, see Fed.Rules Civ.Proc. 4(a), 4(j), it need not occur within the limitations period.

Simon v. Kroger Co., --- U.S. ----, 105 S.Ct. 2155, 85 L.Ed.2d 511 (1985) (White, J., dissenting from denial of cert.).

A majority of the courts that have addressed the question here presented have, like the court below, found that where the six month limitations period of 10(b) governs, the tolling provision of that section also applies. See Williams v. Greyhound Lines, Inc., 756 F.2d 818 (11th Cir.1985); Dunlap v. Lockheed Georgia Co., 755 F.2d 1543 (11th Cir.1985); Simon v. Kroger Co., 743 F.2d 1544, reh'g denied, 749 F.2d 733 (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 612 (11th Cir.1984); Ellenbogen v. Rider Maintenance Corp., 621 F. Supp. 324 (RLC), slip op. (S.D.N.Y.1985); Waldron v. Motor Coils Manufacturing Co., 606 F.Supp. 658 (W.D.Penn.1985); Thompson v. Ralston Purina Co., 599 F.Supp. 756 (W.D.Mich.1984); Hoffman v. United Markets, Inc., 117 L.R.R.M. 3229 (N.D.Cal.1984). But see Simon v. Kroger Co., --- U.S. ----, 105 S.Ct. 2155, 85 L.Ed.2d 511 (1985) (White, J., dissenting from denial of cert.); Thomsen v. United Parcel Service, 608 F.Supp. 1244 (S.D.Iowa 1985); LaTondress v. Local No. 7, I.B.T., 102 F.R.D. 295 (W.D.Mich.1984); Williams v. E.I. Dupont de Nemours Co., 581 F.Supp. 791 (M.D.Tenn.1983).

In Sisco we found that 10(b) "represents Congress' evaluation of the appropriate balance of interests between the need for prompt resolution of disputes on the one hand, and the interest in assuring adequate representation of employees on the other." Sisco, 732 F.2d 1188, 1193. Similarly, in DelCostello the Supreme Court stated:

At least as important as the similarity of the rights asserted in the two contexts, however, is the close similarity of the considerations relevant to the choice of a limitations period. As Justice Stewart observed in (United Parcel Service, Inc. v. Mitchell ):

"In Sec. 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case ... '[t]he need for uniformity' among procedures followed for similar claims ... as well as the clear congressional indication of the proper balance between the interests at stake, counsels for adoption of Sec. 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this." (451 U.S. at 70-71, 101 S.Ct. at 1567-68) (footnote omitted).

DelCostello, 462 U.S. at 170-71, 103 S.Ct. at 2293-94 (quoting Mitchell, 451 U.S. 56, 70-71, 101 S.Ct. 1559, 1567-68, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring)).

The balance struck by Congress and recognized in DelCostello is reflected in the language of 10(b), which unambiguously requires both filing and service of process within six months of the accrual of the cause of action. We are reluctant to upset that balance by grafting Fed.Rule Civ.Proc. 4(j) onto 10(b), particularly since doing so would increase the time limit for initiation of the dispute resolution process from six to ten months, a substantial addition.

While it is true, as Judge Gibbons notes, that the complaint in an unfair labor practice proceeding is filed by the General Counsel after an investigation of the employee's charge, it is the filing and service of the charge that notifies the employer of the charge and initiates the dispute resolution process in such a proceeding. The filing and service of the complaint performs the same function in a hybrid labor suit like the one before us. Section 10(b) promotes the prompt resolution of labor disputes by requiring an early initiation of the dispute resolution process and DelCostello teaches that this policy should be implemented in hybrid labor suits as well. That policy is best served by borrowing the service requirement, as well as the filing requirement, of Section 10(b).

The final order of the district court will be affirmed. *

GIBBONS, Circuit Judge, dissenting:

Thomas West appeals from an order dismissing his suit against his employer and union, alleging that the employer had breached the collective-bargaining agreement and that the union had breached its duty of fair representation. The district court dismissed because service of process had not been completed before the running of the applicable statute of limitations.

Both breaches were claimed to be violations of the Railway Labor Act, 45 U.S.C. Secs. 151-188 (1982). In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that the applicable statute of limitations for such hybrid suits under the National Labor Relations Act, 29 U.S.C. Secs. 151-169 (1982), was the six-month limitation found in section 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b) (1982). As Judge Stapleton notes, this court, following the reasoning of DelCostello, has applied section 10(b)'s six-month limitation period to hybrid Railway Labor Act cases. See Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1193 (3d Cir.1984). The issue presented on this appeal is whether section 10(b)'s additional requirement that service of process be completed within the six-month period is also applicable to a hybrid breach of contract/breach of fair representation suit brought in federal district court.

The pertinent facts of this case are not in dispute. Thomas West, the plaintiff, was fired by Consolidated Rail Corporation on November 27, 1981, after four bottles of beer were discovered in a truck that West had been riding in. West disclaimed knowledge of the alcoholic beverages and requested his union, the Brotherhood of Maintenance of Way Employes, to appeal his grievance. For the next twenty-eight months the union gave West a variety of excuses for not processing his appeal. Finally, on March 25, 1984 West discovered that the union official responsible for his appeal was not pursuing the matter, and that there was little chance that his grievance appeal would be acted on. West, therefore, filed suit against his employer and union in the United States District Court for the District of New Jersey. Although the suit was filed within...

To continue reading

Request your trial
11 cases
  • Fraser v. James
    • United States
    • U.S. District Court — Virgin Islands
    • March 9, 1987
    ...we have not hesitated to turn away from state law ... Id. at 171-172, 103 S.Ct. at 2294 (citations omitted). See also, West v. Conrail, 780 F.2d 361 (3d Cir.1985); Taylor v. Ford Motor Co., 761 F.2d 931 (3d Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 849, 88 L.Ed.2d 890 (1986); Ohare v......
  • Fraser v. James
    • United States
    • U.S. District Court — Virgin Islands
    • March 9, 1987
    ...lawmaking, we have not hesitated to turn away from state law . . . . Id. at 171-72 (citations omitted). See also, West v. Conrail, 780 F.2d 361 (3d Cir. 1985); Taylor v. Ford Motor Co., 761 F.2d 931 (3d Cir. 1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 849 (1986); Ohare v. General Marine T......
  • Lewis v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 771
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 21, 1987
    ...that the policy would not be voted on. The district court did not reach this issue but dismissed Lewis' complaint, citing West v. Conrail, 780 F.2d 361 (3d Cir.1985). Lewis appeals from that order. II. Jurisdiction Although no party raised an issue of subject matter jurisdiction, every fede......
  • Ellenbogen v. Rider Maintenance Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 24, 1986
    ...the six-month filing and service requirements. See Gallon v. Levin Metals Corp., 779 F.2d 1439, 1441 (9th Cir.1986); West v. Conrail, 780 F.2d 361, 363 (3d Cir.1985); Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir.1984). Macon v. ITT Continental Baking Co., Inc., 779 F.2d 1166, 1170......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT