The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant United Automobile, Aerospace
and Agricultural Implement Workers of America, Local 1307's
motion for partial summary judgment. Defendant seeks summary
judgment in its favor on plaintiff's claim that the union
breached its duty of fair representation under the National
Labor Relations Act, 29 U.S.C. § 151 et seq. For the reasons
stated herein, defendant's motion for partial summary judgment
The following facts are not genuinely disputed. For purposes
of this motion, the Court construes all inferences from these
facts in a light most favorable to the plaintiff. Cubbage v.
Averett, 626 F.2d 1307, 1308 (5th Cir. 1980).
Plaintiff, Edward L. Waller, brings this suit against his
employer, International Harvester Company ("Harvester"), and
his union, United Automobile Aerospace and Agricultural
Implement Workers of America, Local 1307 ("the union"). Waller
alleges that Harvester discriminated against him on the basis
of his race in violation of 42 U.S.C. § 1981. Waller further
alleges that the union "aided and abetted and conspired" with
Harvester to discriminate against Waller because of his race in
violation of 42 U.S.C. § 1981, 1985 and 29 U.S.C. § 151 et
seq. Of particular significance to this motion are Waller's
allegations that the union breached its duty of fair
representation. Waller alleges that the union breached its duty
of fair representation when it failed to pursue the grievances
of black employees (Third Amended Complaint, ¶ 19) and when it
persuaded Waller to settle his claims against Harvester "for a
nominal payment." Third Amended Complaint, ¶ 21. Finally,
although not the subject of this motion, Waller charges the
union with violating Title VII, 42 U.S.C. § 2000e et seq.,
because the union "aided and abetted and conspired with
Harvester to discriminate against plaintiff individually on
account of his race. . . ." Third Amended Complaint, ¶ 23.
In August, 1977, Waller rejected a $200 proposed settlement
offer for resolution of a seniority violation. Also in August,
1977, the union informed Waller that it would not process his
grievance further. Plaintiff's Response To Memorandum In
Support of Motion of Defendant UAW Local 1307 For Partial
Summary Judgment, at 1.*fn1 On August 26, 1977, Waller filed
charges of employment discrimination with the Equal Employment
Opportunity Commission (EEOC) against Harvester and the union.
On November 16, 1979, Waller received a "Notice of Right to
Sue" from the EEOC. Suit was filed on January 4, 1980, and
dismissed on May 21, 1981, with leave given to Waller to file
a new complaint. Waller's Third Amended Complaint, filed March
1, 1983, is the subject of the union's motion for partial
The union advances two arguments in support of its motion
for summary judgment on Waller's fair representation claim.
First, the union argues that Waller's claim, filed over two
years after the union refused to pursue his grievance, is
barred by the six-month statute of limitations recently
announced by the Supreme Court in Del Costello v. International
Brotherhood of Teamsters, ___ U.S. ___, 103 S.Ct. 2281, 76
L.Ed.2d 476 (1983). Second, the union argues that Waller's
claim is barred because Waller failed to exhaust available
internal union remedies.
Waller argues that his claim is not barred by Del Costello's
six-month limitation period for three reasons. First, Waller
distinguishes Del Costello on its facts. Second, Waller argues
that Del Costello should not be applied "retroactively" to bar
his claim. Third, Waller argues that even assuming the
six-month limitation period applies, the statute of limitations
was tolled during the pendency of Waller's complaint before the
EEOC. Regarding the union's exhaustion argument, Waller replies
that exhaustion should be excused because "such procedures
would not in all probability result in a re-activation of his
grievance or in an award of the complete relief sought in the
fair representation suit."
In Del Costello v. International Brotherhood of Teamsters,
___ U.S. ___, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the
Supreme Court held that the six-month statute of limitations
provided by Section 10(b) of the National Labor Relations Act
(NLRA), 29 U.S.C. § 160(b), governed a suit by an employee
against a union for breach of the duty of fair representation.
Waller, however, argues that Del Costello is inapplicable
because the plaintiff in Del Costello, in addition to suing the
union, sued his employer for breach of the employment contract
under Section 301 of the Labor Management Relations Act,
29 U.S.C. § 185. Although Waller correctly notes that he is not
suing Harvester under Section 301, the Court finds this factual
distinction irrelevant to the applicability of the six-month
NLRA limitation period. Although Del Costello involved claims
against both the union and the employer, the Court clearly held
that the six-month limitation provided by § 10(b) "should be
the applicable statute of limitations governing the suit, both
against the employer and against the union." Del Costello, ___
U.S. at ___, 103 S.Ct. at 2285. Del Costello, therefore,
provides ample authority for this Court to hold that the
six-month NLRA limitation period applies to a claim brought by
an employee against a union even though the employee does not
join the employer in a Section 301 claim.
Waller's second argument — that Del Costello should not be
applied retroactively — deserves little discussion. Relying
upon Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30
L.Ed.2d 296 (1971),*fn2 and Singer v. Flying Tiger Line Inc.,
652 F.2d 1349 (9th Cir. 1981),*fn3 Waller argues that it would
be inequitable to apply Del Costello retroactively in this
case. However, given that the Supreme Court, the Court of
Appeals for the Seventh Circuit, and the District Court for the
Northern District of Illinois have all applied the Del Costello
six-month limitation retroactively, there appears little
authority for this Court to hold otherwise. See Del Costello,
___ U.S. at ___, 103 S.Ct. at 2294 (applying six-month
limitation period retroactively to companion case consolidated
with Del Costello); Metz v. Tootsie Roll Industries, Inc.,
715 F.2d 299, 303 (7th Cir. 1983); Ender v. Chrysler Corp., No. 73
C 23, slip op. at 5 (N.D.Ill. Aug. 15, 1983). Accordingly,
Waller's second argument is without merit and the NLRA
six-month limitation period governs Waller's fair
representation claim against the union.
Waller's final argument regarding the statute of limitations
issue is that the limitation period should be tolled during
the pendency of Waller's complaint before the EEOC. Without
citing any authority, Waller argues that "[i]t would be
inequitable to penalize plaintiff for having awaited
administrative action [before the EEOC]."
In Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct.
1716, 44 L.Ed.2d 295 (1974), the Court held that the pendency
of Title VII proceedings before the EEOC does not toll the
limitations period for a 42 U.S.C. § 1981 cause of action. The
Court reasoned that causes of action under Title VII and § 1981
are independent of each other and therefore a plaintiff must
"take the minimal steps necessary to preserve each claim
independently." Id. at 466, 95 S.Ct. at 1723.
Johnson is persuasive in resolving the issue of whether
Waller's Title VII claim before the EEOC and his fair
representation claim before this Court are legally independent
of each other. In Johnson, the Court stated that "[o]nly where
there is complete identity of the causes of action will
the . . . courts have an opportunity to assess the influence of
the policy of repose inherent in a limitation period." 421 U.S.
at 468 n. 14, 95 S.Ct. at 1724 n. 14. Waller's Title VII cause
of action and his fair representation claim, although related,
are separate actions. The former is grounded upon the union's
alleged discriminatory conduct while the latter is directed at
the union's failure to protect Waller's rights under the
collective bargaining agreement. Waller's failure to file his
fair representation claim within the six-month limitation
period cannot be excused simply because he filed a Title VII
claim against the union with the EEOC. As in Johnson, Waller
has failed "to take the minimal steps necessary to preserve
each claim independently." 421 U.S. at 466, 95 S.Ct. at 1723.
Accordingly, Waller's fair representation claim against the
union is barred by the six-month limitation period provided by
§ 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b).
Finally, although not necessary for the resolution of this
motion, the Court further holds that Waller's fair
representation claim is barred because Waller failed to
exhaust available internal union remedies. Generally, an
employee must exhaust internal union remedies before resorting
to judicial resolution of a labor dispute. See Clayton v.
Automobile Workers, 451 U.S. 679, 692, 101 S.Ct. 2088, 2097, 68
L.Ed.2d 538 (1981). If, however, the internal union procedures
are inadequate to provide the employee complete relief,
exhaustion is not required. Id. at 693, 101 S.Ct. at 2097.
Waller's conclusory allegations in his brief that the union's
internal appeal procedures "would not in all probability result
in a re-activation of his grievance or in an award of complete
relief" are not sufficient to create issues of material fact to
be tried. Waller ...