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TONY E. HELMS Plaintiff
vs.
YELLOW FREIGHT SYSTEM INC. et al. Defendants
 
Case:
Civil Action No. 88-2399-O
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
 
Date:
September 18, 1989 Decided
 
Attorneys:
Fred Spigarelli Pamela G. Kohler Pittsburg Kansas, for
Plaintiff.
David B. Mandelbaum Ronald E. Sandhaus Overland Park Kansas, for Yello Freight System Inc.
Gerald R. Bloomfield Kool Kool Bloomfield & Hollis Albuquerque New Mexico and Robert L. Dameron Blake & Uhlig P.A. Kansas City Kansas for Chauffeurs Teamsters and Helpers Local No. 492.
 
Court:
Earl E. O'Connor, Chief United States District Justice.
 
Author:
The Hon. Justice O'Connor
 

Plaintiff brought this claim against his employer and his union alleging that (1) his employer had discharged him in violation of the collective bargaining agreement; and (2) his union had failed to fulfill its duty of fair representation in processing his discharge grievance. Such claims are colloquially referred to as "hybrid SEC. 301/fair representation actions" based on the applicability of SEC. 301(a) of the Labor Management Relations Act 29 U.S.C.S. SEC. 185(a) (1982). Subsequently both the employer and the union filed motions for summary judgment contending inter alia that plaintiff's action is barred by the applicable statute of limitations. Since we dispose of this case solely on statute of limitations grounds we reach neither the additional issues raised in defendants' briefs nor those raised in plaintiff's cross motion for partial summary judgment.

Facts

In 1987 plaintiff was an employee of defendant Yellow Freight Systems Inc. and a member of defendant Chauffeurs Teamsters and Helpers Local No. 492. Because his duties required him to drive a vehicle plaintiff was required to maintain a chauffeurs license and to take scheduled Department of Transportation physicals which included urinalysis.

The terms and conditions of plaintiff's employment were governed by a collective bargaining agreement the National Master Freight Agreement which incorporated certain uniform testing procedures (UTP) for determining drug abuse. Section I(D) of the UTP provided:

"if the [Department of Transportation] or other regular physical examination test results of urine specimens by gas chromatography Mass Spectrometry confirm the initial immunochemical quantitation of thirty (30) or more nanograms cross-reactive cannabinoids/mL the employee shall be subject to discharge."

On October 1 1987 plaintiff underwent a regularly scheduled physical. On October 7 1987 plaintiff was advised by his supervisor that since the results of the urinalysis test indicated the presence of 54 nanograms of marijuana he had tested positive for marijuana use and was discharged from employment.

At the time of his discharge grievance procedures were governed by the collective bargaining agreement specifically Article 45 of the Western States Supplemental Agreement which provided in part:

All disputes shall first be taken up between the Employer and Local Union involved. Failing adjustment by these parties the following procedure shall apply:

(a) The dispute then may be filed by either party with an appropriate Joint State Committee. A majority vote of a Joint Committee shall be final and binding upon the parties to the dispute and the employee(s) involved and no appeal may be taken to the Joint Western Area Committee.

Plaintiff filed a grievance protesting his discharge on October 14 1987 which was heard by the Joint State Committee on October 26 1987. On that date the Committee unanimously upheld the discharge and informed plaintiff of its decision.

Six weeks later in December 1987 plaintiff returned to his union office to obtain a copy of the minutes of his grievance hearing. While searching through the file plaintiff discovered a document which he believed demonstrated that the results of his drug tests were insufficient to discharge him under the terms of the collective bargaining agreement. *fn1 Shortly thereafter plaintiff contacted his union representative and requested that the union assist him in reopening his discharge grievance. Plaintiff's union representative reluctantly agreed and a second hearing was held before the Joint State Committee on March 29 1988 at which time the Committee refused to reopen plaintiff's grievance on the basis that the October 26 1987 decision was final and binding. Plaintiff filed the instant action on July 15 1988.

Discussion

Hybrid SEC. 301/fair representation claims typically involve (1) a claim against the employer for breach of the collective bargaining agreement under SEC. 301 of the National Labor Relations Management Act 29 U.S.C.S. SEC. 185; and (2) a claim against the union for undermining the grievance and arbitration process by violating its duty of fair representation. See Garcia v. Eidal Intern. Corp. 808 F.2d 717 720 (10th Cir. 1986) cert. denied 484 U.S. 827 108 S. Ct. 94 98 L. Ed. 2d 55 (1987). Here the plaintiff alleged (1) that his employer breached the collective bargaining agreement by discharging him on the basis of an insufficient drug test result and (2) that his union breached its duty to fairly represent him at his grievance hearing by failing to argue that the test results were insufficient.

Defendants contend that the action is time-barred under the applicable statute of limitations which the parties agree is the six-month statute of limitations of SEC. 10(b) of the National Labor Relations Act 29 U.S.C.S. SEC. 160(b) applied to hybrid SEC. 301 claims by the Supreme Court in DelCostello v. Int'l Bhd. of Teamsters 462 U.S. 151 76 L. Ed. 2d 476 103 S. Ct. 2281 (1983). While DelCostello settled the limitations period applicable to hybrid SEC. 301 actions the Supreme Court did not expressly address the issue of when such causes of action accrue. Defendants contend that plaintiff's action filed on July 15 1988 is untimely under DelCostello because the action accrued on October 26 1987 the date the Joint Committee upheld plaintiff's discharge. Plaintiff counters that his action accrued on March 29 1988 when the Joint Committee denied his application to reopen his grievance.

Plaintiff correctly states that certain lower courts have held that hybrid SEC.301 causes of action accrue from the time a final decision on a grievance is made or from the time the employee discovers or in the exercise of due diligence should have discovered that no future action would be taken on his grievance. See Richards v. Local 134 International Brotherhood of Electrical Workers 790 F.2d 633 636 (7th Cir. 1986); Craft v. Auto Petro. & A.L.E.U. Local 618 754 F.2d 800 803 (8th Cir. 1985). Plaintiff contends that under this formulation his cause of action accrued when the Joint Committee denied his application to reopen his grievance on March 29 1988 since it was only then that he realized no further action would be taken.

We find this contention to be without merit and not supported by relevant case law. It is well settled that absent a specific provision in a collective bargaining agreement authorizing an employee to reopen a grievance efforts by an employee to do so neither toll the statute of limitations for bringing a hybrid SEC. 306/fair representation claim nor cause it to run anew. See Tol v. General Teamsters Union Local No. 406 656 F. Supp. 300 303 (W.D.Mich.1987) (noting plaintiff could point to nothing in the collective bargaining agreement allowing him to file a request to reopen his grievance); Hull v. Local 414 of Int'l Bhd. of Teamsters 601 F. Supp. 869 872-73 (N.D.Ind. 1985) (holding statute not tolled by plaintiff's request to reopen his grievance based on new evidence); Branch v. American Freight System Inc. 586 F. Supp. 184 187 (W.D. Mo. 1983) (statute not tolled by committee's reconsideration of plaintiff's grievance based on new evidence). See also Gersbacher v. Commercial Carriers Inc. No. 84-1014 slip. op. at 4 (6th Cir. June 17 1985). *fn2

Courts which have considered the precise question presented here have reasoned that where the clear terms of the collective bargaining agreement provide that a majority vote of the joint committee is final and binding and where there is nothing in the agreement expressly authorizing the plaintiff to reopen his grievance on the ground of new evidence allowing plaintiff's cause of action to accrue on the date the Joint Committee denies reconsideration would extend the permissible period for filing a hybrid SEC. 301 suit indefinitely. See e.g. Hull supra 601 F. Supp. at 873 citing Branch supra 586 F. Supp at 186.

We agree with this reasoning and decline to reach a contrary result. Doing so would clearly place the statute of limitations entirely under the control of the plaintiff thereby nullifying the effect of a standard statute of limitations for all hybrid SEC. 301 claims and undermining the federal policy favoring uniformity and the quick resolution of labor disputes. See DelCostello supra 462 U.S. at 166-69; Gersbacher supra.

Thus we find that where the collective bargaining agreement provides no avenue for the rehearing of grievances pursuit of a remedy outside the agreement's express provisions will not affect the running of the statute of limitations. Accordingly because plaintiff's cause of action accrued more than six months prior to the date of filing Court finds plaintiff's cause of action to have been untimely filed.

IT IS THEREFORE ORDERED that defendants' motions for summary judgment are granted.

 
Notes:

*fn1 The document discovered by plaintiff was the "Long Form" drug test report which stated that the initial test report of 57 nanograms of cannabinoids had been confirmed by a second test reporting 23 nanograms of carboxy-THC. Under the Uniform Testing Procedure (UTP) a two-step procedures was performed to detect the presence of marijuana. First enzyme multiplied immunoassay testing (EMIT) is conducted to determine the presence (or absence of) of total immunochemically cross-reactive cannabinoids. If the EMIT test result show less than 30 nanograms of immunochemically cross-reactive cannabinoids/mL urine the results by definition are negative. However if 30 or more nanograms of immunochemically cross-reactive cannabinoids/mL urine are detected an additional test a gas chromatography/mass spectrometry (CC/MS) analysis is performed.

In plaintiff's case the EMIT test reported 57 nanograms of cannabinoids and the CC/MS test reported 23 nanograms of carboxy-THC. According to defendants' uncontroverted affidavits and exhibits confirmation of a positive EMIT test would occur when the CC/MS test showed 10 or more nanograms of carboxy-THC a known marijuana metabolite. (Defendant Yellow Freight's Motion for Summary Judgment Cohn affidavit p. 6; Appendix A). On the basis of these exhibits and our examination of the entire record we note that although our decision on the statute of limitations issue has precluded us from reaching the issue of the sufficiency of the tests to discharge the plaintiff defendant's motion would likely have been granted on the merits.

*fn2 We note that other courts have held that these causes of action accrue when the plaintiff knows or in the exercise of reasonable diligence should have discovered the acts constituting the alleged violation. See Arriaga-Zayas v. Int'l Ladies' Garment Workers 835 F.2d 11 13 (1st Cir. 1987) cert. denied 486 U.S. 1033 108 S. Ct. 2016 100 L. Ed. 2d 604 (1988); Metz v. Tootsie Roll Industries 715 F.2d 299 304 (7th Cir. 1983) cert. denied 464 U.S. 1070 104 S. Ct. 976 79 L. Ed. 2d 214 (1984); see also McLinn v. Boeing 715 F. Supp. 1024 1029 (D.Kan. 1989) and cases cited therein. Under this formulation of the accrual rule plaintiff's action would still be time barred. Since plaintiff is required to know and honor the terms and conditions of the collective bargaining agreement he could have reasonably discovered that the unanimous decision of the joint committee on October 27 1987 was the last violation of which he would be allowed to complain. Hull supra 601 F. Supp. at 873 (citations omitted). Even if we were to use December 1987 (the date plaintiff discovered the document he believed supported his claim) as the date of accrual plaintiff's claim would have been untimely under the six-month rule since it was not filed until July 15 1988.