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Jane C. Triplett, Appellant
vs.
The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Local Lodge No. 308, a labor organization affiliated with The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees; The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, a labor organization; and The Chesapeake and Ohio Railway Company, a corporation, Appellees
 
Case:
No. 84-1697
 
Location:
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
 
Date:
March 4, 1985, Argued
June 4, 1985, Decided
 
Attorneys:
George A. Stolze for Appellant.
John A. Edmond; William C. Beatty (Joseph Guerrieri, Jr.; Highsaw & Mahoney, P.C.; Huddleston, Bolen, Beatty, Porter & Copen on brief), for Appellees.
 
Court:
Hall and Chapman, Circuit Court, and Haynsworth, Senior Circuit Court.
 
Author:
The Hon. Justice Hall
 

Jane C. Triplett appeals from an order of the district court granting summary judgment for defendants, the International and local chapter of the Brotherhood of Railway, Airline and Steamship Clerks (the "union") and Chesapeake and Ohio Railway Company ("C & O"). We reverse and remand this case to the district court for further proceedings on the basis of recent precedent in this Circuit which we find to be controlling.

On June 27, 1979, Triplett filed in the district court sitting in the Southern District of West Virginia a complaint pursuant to the Railway Labor Act, 45 U.S.C. SEC. 151 et seq. Triplett alleged that her employer, C & O, had breached the applicable collective bargaining agreement by wrongfully terminating her employment on July 14, 1977, and that her union had breached its duty of fair representation in the handling of her subsequent grievance.

In 1984, the district court dismissed Triplett's action, concluding that it was barred by retroactive application of the United States Supreme Court's decision in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). In DelCostello, the Supreme Court held that the applicable statute of limitations for breach of contract/duty of fair representation claims brought pursuant to SEC. 301 of the Labor Management Relations Act, 29 U.S.C. SEC. 185, was the six-month limitations period for filing an unfair labor practice charge under SEC. 10(b) of the National Labor Relations Act, 29 U.S.C. SEC. 160(b).

On appeal, Triplett contends that her action was timely under the two-year statute of limitations set forth in the Railway Labor Act, 45 U.S.C. SEC. 153 First (r), for judicial review of awards of the National Railway Adjustment Board ("NRAB"). Alternatively, she argues that the decision in DelCostello should not be applied retroactively in her case. We reject Triplett's argument under the Railway Labor Act, but agree with her that, under the circumstances of this case, retroactive application of DelCostello is not warranted.

45 U.S.C. SEC. 153 First (r) provides that:

All actions at law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after. On its face, the two-year limitations period applies only to actions to review an award of the NRAB, and not to actions alleging the failure to obtain an award. As the Third Circuit reasoned in Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1193-94 (3d Cir. 1984):

The nature of judicial review of a Board order is very different from that appropriate to DFR [duty of fair representation] proceedings. Board awards are reviewed under a narrow standard of review. The award on its face provides sufficient information for the reviewing court to exercise the requisite narrow scope of review. In a DFR claim for failure to bring a claim to the Board, in contrast, the inquiry is entirely distinct. The relevant question is whether the union discriminated or acted arbitrarily in failing to prosecute the claim during the limitation period prescribed by the collective bargaining agreement. Because these claims need not be exhausted before the Board, evidence must be taken by the trial court on the union's conduct during the contractual limitation period. There is a federal interest in the prompt resolution of these evidentiary disputes, especially in the collective bargaining context. Nothing suggests that the two-year limitation period for review of Board orders, which is peculiarly appropriate to our standard of review over those orders, would also be an appropriate limitation period on DFR claims. Thus, the two-year period of section 153 First (r) is not attuned to the proper balance of interests in DFR litigation.

(citations and footnotes omitted).

The Circuits which have considered the question have uniformly concluded that the limitations period announced in DelCostello for breach of contract/duty of fair representation claims under SEC. 301 of the Labor Management Relations Act applies with equal force to similar claims brought pursuant to the Railway Labor Act. *fn1 We agree that DelCostello's six-month limitations SEC. period will ordinarily govern actions under the Railway Labor Act for breach of contract and breach of the union's duty of fair representation. Nevertheless, we find that, on the basis of this Court's recent decision in Zemonick v. Consolidation Coal Co., 762 F.2d 381 (4th Cir. 1985), the district court erred in dismissing Triplett's action. In Zemonick, the majority concluded that retroactive application of DelCostello's six-month rule was not warranted in a West Virginia case, like Triplett's, brought for breach of contract/duty of fair representation.

Court in Zemonick noted that before DelCostello West Virginia plaintiffs had clear past precedent from this Circuit indicating that such actions were governed by West Virginia's five-year statute of limitations for oral contracts. Kennedy v. Wheeling-Pittsburgh Steel Corp., 81 L.R.R.M. 2349, 69 CCH Labor Cases para. 12,980 (4th Cir. 1972). See also Howard v. Aluminum Workers International Union, 589 F.2d 771 (4th Cir. 1978). We conclude that the reasoning in Zemonick is equally applicable to the facts of this case and that Triplett's action, which was filed within two years of her discharge, is, consequently, not barred by limitations.

For the foregoing reasons, the judgment below is reversed and this matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

 
Notes:

*fn1 Barnett v. United Airlines, Inc., 738 F.2d 358, 363-64 (10th Cir. 1984); Welyczko v. U.S. Air, Inc., 733 F.2d 239, 240 (2d Cir. 1984), cert. denied, 469 U.S. 1036, 105 S. Ct. 512, 83 L. Ed. 2d 402, 53 U.S.L.W. 3403 (1984); Sisco v. Consolidated Rail Corp., 732 F.2d 1188, 1192 (3d Cir. 1984); Hunt v. Missouri Pacific R.R., 729 F.2d 578, 581 (8th Cir. 1984); Ranieri v. United Transportation Union, 743 F.2d 598, 600-601 (7th Cir. 1984).