The opinion of the court was delivered by: Leighton, District Judge.
This is an action brought pursuant to Section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185 (LMRA), for
unlawful discharge and breach of the duty of fair
representation. On September 9, 1981, after 20 years on the
job, plaintiff John H. Weller was discharged from his
employment as a dockworker with the defendant
Glendenning Motorways, Inc. (GMW) for excessive absenteeism.
He filed a grievance; on September 28, 1981, pursuant to the
collective bargaining agreement, a grievance hearing was held.
He was represented by John Altepeter, the business agent for
defendant International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 710 (Union).
Plaintiff contended, and alleges in this case, that his
absences were medically related; that GMW's policy with
respect to excessive absenteeism was undefined; and that it
was discriminatorily applied to him. He further contended, and
reasserts here, that he was discharged in retaliation for his
circulation of a petition objecting to the absenteeism
policies. The Joint Committee upheld plaintiff's discharge. He
now sues in this court, alleging that Union failed to fairly
and adequately represent him during the grievance process, and
at the hearing itself.
Both defendants move to dismiss the complaint pursuant to
Rule 12, Fed.R.Civ.P., on the ground that the action is barred
by the applicable statute of limitations. The motions raise an
issue that has occasioned some dispute in this district: what
is the appropriate statute of limitations for an action
brought by an employee under Section 301 of the LMRA against
his employer and union for wrongful discharge and breach of
the duty of fair representation? After consideration of the
parties' submissions and the relevant law, this court
concludes that the appropriate statute of limitations is the
six-month period found in Section 10(b) of the National Labor
Relations Act (NLRA), 29 U.S.C. § 160(b). Under this statute,
plaintiff's action was timely filed and the motions to dismiss
must therefore be denied.
In support of their motions, defendants cite United Parcel
Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d
732 (1981), in which the Supreme Court applied a state statute
of limitations for actions to vacate arbitration awards to an
action under Section 301 challenging a mediator's decision and
a union's subsequent refusal to further grieve the discharge.
The Seventh Circuit, and several courts in this district, as
defendants have urged this court to do, have relied on United
Parcel Service v. Mitchell, and have applied the state
limitations statute applicable to actions to vacate arbitration
awards to Section 301 actions. See, e.g., Davidson v. Roadway
Express, 650 F.2d 902 (7th Cir. 1981) cert. denied, ___ U.S.
___, 102 S.Ct. 1447, 71 L.Ed.2d 661 (1982); Pyle v. Arco
Polymers, Inc., No. 81 C 3586 (N.D.Ill. 1982); Bigbie v. Local
142, I.B.T., 530 F. Supp. 402 (N.D.Ill. 1981); Madia v.
Pacific Intermountain Express, No. 81 C 360 (N.D.Ill. 1982);
Johnson v. Agar Products Co., No. 81 C 2983 (N.D.Ill.
Plaintiff argues that the proper statute of limitations is
the six-month time limit for filing charges of unfair labor
practices contained in Section 10(b) of the NLRA. The use of
this limitations period in actions under Section 301 was
advocated by Justice Stewart in his concurrence in United
Parcel Service v. Mitchell, 451 U.S. at 65-71, 101 S.Ct. at
1565-1568. The Supreme Court, however, expressly reserved
decision on the question, noting that the issue was not
properly before it. 451 U.S. at 60 n.2, 101 S.Ct. at 1562 n.2.
The question whether the limitations period in Section 10(b)
should be applied to actions under Section 301, rather than an
analogous state statute, has also been mentioned but not
addressed by the Seventh Circuit. See Davidson, supra, 650 F.2d
at 904 n.2. Recently, two courts in this district have
confronted the issue raised by plaintiff and have adopted the
six-month limitations period of Section 10(b). See Kaftantzis
v. D. & L. Transport Co., 531 F. Supp. 566 (N.D.Ill. 1982);
Collins v. Car Carriers, 536 F. Supp. 776 (N.D.Ill. 1982).
Several other courts have adopted the six-month limitations
period as well. Badon v. General Motors Corp., 679 F.2d 93 (6th
Cir. 1982); Lewis v. Harbison-Walker Refractories, 542 F. Supp. 1381
(N.D.Ind. 1982); Benson v. General Motors Corp.,
539 F. Supp. 55 (N.D.Ala. 1981).
Judges Marshall and Bua of this court begin their analysis
with the recognition that because Congress has not enacted a
specific statute of limitation to govern actions brought under
Section 301, courts must determine the timeliness of such an
action as a matter of federal law, "which courts must fashion
from the policy of our national labor laws." International
Union, United Automobile, Aerospace & Agricultural Implement
Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S.Ct.
1107, 1110, 16 L.Ed.2d 192 (1966) (quoting Textile Workers
Union v. Lincoln Mills of Alabama, 353 U.S. 448, 456, 77 S.Ct.
912, 917, 1 L.Ed.2d 972 (1957)). They go on to note that a
Section 301 claim is distinct from a private breach of contract
action because recovery under the section is dependent on a
showing by plaintiff that the union breached its duty of fair
representation. See Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). A union's duty
of fair representation is statutorily based and derives from
the NLRA. See Clayton v. International Union, United
Automobile, Aerospace & Agricultural Implement Workers,
451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538 (1981);
International Brotherhood of Electrical Workers v. Foust,
442 U.S. 42, 46 n.8, 99 S.Ct. 2121, 2125 n.8, 60 L.Ed.2d 698
(1979); Vaca v. Sipes, 386 U.S. 171, 177, 186-87, 87 S.Ct.
903, 914-15, 17 L.Ed.2d 842 (1967). Further, the National Labor
Relations Board considers the breach of the duty an unfair
labor practice under the NLRA. See, e.g., Miranda Fuel Co., 140
N.L.R.B. 181 (1962), enforcement denied sub nom., NLRB v.
Miranda Fuel Co., 326 F.2d 172 (2d Cir. 1963). Given the close
ties between the obligation sought to be enforced in a Section
301 action and the NLRA, it makes sense to look to the NLRA for
the appropriate statute of limitations. As Judge Marshall
succinctly concluded in Kaftantzis:
Because such suits as the instant one involve
rights under the NLRA, and not simply private
contractual rights and duties, the NLRA and not
state statutes governing private arbitration
contains a more appropriate limitation period
than do the state statutes. Section 10(b) of the
NLRA represents a congressional judgment as to
the appropriate balance between an employee's
interest in industrial peace and attaining some
measure of finality in the arbitral process.
Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 428-29
[80 S.Ct. 822, 832-33, 4 L.Ed.2d 832] (1960). This
congressional balance, because it represents the
judgment of the national legislature, is of
necessity more responsive to the needs of national
labor policy than are state statutes.
Kaftantzis, 531 F. Supp. at 569; see also Mitchell, 451 U.S. at
70, 101 S.Ct. at 1567 (Stewart, J., concurring). This court is
persuaded by the reasoning of Kaftantzis and Car Carriers. It
notes that although an action against an employer under Section
301 is for wrongful discharge, not breach of the duty of fair
representation, the two are closely intertwined; a claim
against the employer under Section 301 is dependent on a
demonstration that the union breached its duty of fair
representation. Because of the interrelation between the two
types of Section 301 claims, the reasons behind looking to the
NLRA for actions against the union apply equally as well to
actions against the employer. Thus the balance struck by
Section 10(b), and discussed by Judge Marshall, is an aspect of
our national labor policy applicable to a Section 301 action
against an employer as well as against a union.
In the present case, plaintiff's final arbitration decision
was rendered on September 28, 1981; that was the day his cause
of action arose. This action was filed on March 29, 1982, 180
days later. Assuming 30 days for every month, this action was
timely filed under the six-month limitations period of Section
10(b). Accordingly, the defendants' motions to dismiss are