The opinion of the court was delivered by: Foreman, Chief Judge.
Before the Court are Defendant Brotherhood of Railway, Airline
and Steamship Clerk's (BRAC) Motion for Summary Judgment
(Document No. 21) and Defendant Missouri Pacific Railroad
Company's (MOPAC) Motion for Summary Judgment (Document No. 24).
Plaintiff filed this action alleging that BRAC was guilty of
unfair representation in negotiations with MOPAC resulting in a
loss of his seniority rights and privileges and that MOPAC
conspired with BRAC to deprive the plaintiff of his seniority
rights. The main argument of both defendants' summary judgment
motions is that plaintiff's cause of action is barred by the
six-month statute of limitations set forth in Del Costello v.
International Brotherhood of Teamsters, 461 U.S. 151, 103 S.Ct.
2281, 76 L.Ed.2d 476 (1983).
Where the moving party has met its initial burden and the
opposing party asserts the existence of a question of fact, the
Seventh Circuit has identified two considerations to be used in
determining whether summary judgment is proper. The Court must
determine whether the non-moving party has established that there
is a genuine issue as to that fact.
To create a question of fact, an adverse party
responding to a properly made and supported summary
judgment motion must set forth specific facts showing
that there is a genuine issue for trial. . . . A
party may not rest on mere allegations or denials of
his pleadings; similarly, a bare contention that an
issue of fact exists is insufficient to raise a
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert.
denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Furthermore, the disputed fact must be material, that is, it must
be outcome-determinative under the applicable law. Egger v.
Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied,
___ U.S. ___, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).
Applying these principles to the issue at hand, the Court finds
that there exists no issue of material fact and that the
defendants are entitled to judgment as a matter of law. Section
301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185,
gives an employee a cause of action against his employer for
unfair labor practices. The employee also has a cause of action
against his union for breach of the union's duty of fair
representation. Both the union's duty and the employee's cause of
action are "implied under the scheme of the National Labor
Relations Act." Del Costello v. International Brotherhood of
Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476
(1983). A similar duty and cause of action are implied under the
Railway Labor Act. Steele v. Louisville & Nashville Railroad Co.,
323 U.S. 192, 204, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944);
Ranieri v. United Transportation Union, 743 F.2d 598, 600 (7th
Initially, the Court notes that the plaintiff claims that MOPAC
is liable to him as a party to BRAC's alleged duty of fair
representation breach. The plaintiff does not bring a direct
claim against MOPAC under § 301 of the LMRA, 29 U.S.C. § 185, as
is usually the case in a "hybrid duty of fair representation/301
action." In the usual hybrid case, the § 301 claim could stand
distinct from the duty of fair representation claim, but here the
plaintiff cannot bring such a claim because § 301 does not apply
to employers, such as MOPAC, subject to the Railway Labor Act.
The claim here is that MOPAC is a party to BRAC's breach. Thus,
if BRAC's claim is dismissed, the claim against MOPAC must also
be dismissed. United Independent Flight Offices Inc., et al. v.
United Airlines, Inc., et al., No. 83-3069, slip op. at 17 (7th
Cir. Jan. 17, 1985). An employer is liable together with the
union for the union's breach of its duty of fair representation,
if as alleged here, it acted in collusion with the union. Id.
In Del Costello, the Supreme Court held that the six-month
statute of limitations set forth in Section 10(b) of the National
Labor Relations Act, 29 U.S.C. § 160(b), governs breach of
contract and/or breach of fair representation claims like the one
present in this lawsuit. In Ranieri, the Seventh Circuit held,
following Del Costello, that the six-month section 10(b) limit
applied to a Railway Labor Act duty of fair representation claim
by an employee against his union. 743 F.2d at 599. The Seventh
Circuit has also applied this limitations period to a suit in
which the employer is alleged to have colluded with the union in
breaching the duty of fair representation. United Independent
Flight Officers, Inc., et al. v. United Airlines, Inc., No.
83-2572, slip op. at 17 (7th Cir. Jan. 17, 1985.) The Seventh
Circuit has applied Del Costello retroactively. Storck v.
International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir.
1983). The six-month limitations period begins running when the
claimant "discovers, or in the exercise of reasonable diligence
should have discovered, the acts constituting the alleged
[violation]." Metz v. Tootsie Roll Industries, Inc.,
715 F.2d 299, 304 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct.
976, 79 L.Ed.2d 214 (1984).
In the instant case, the plaintiff does not contest the fact
that he discovered or otherwise became aware of the acts
constituting the alleged violations on April 16, 1982, or shortly
thereafter. Rather, he alleges that his pursuance of intra-union
remedies tolled the six-month statute of limitations. The
defendant BRAC counters by arguing that since the plaintiff is
not required to exhaust intra-union remedies that are futile, the
statute of limitations is not tolled by the fact that the
plaintiff did pursue them.
With regard to the defendants' argument, the Supreme Court has
held that a railroad employee's suit against a union for breach
of its duty of fair representation is not subject to the ordinary
requirement that administrative remedies be exhausted before
resorting to the courts. Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct.
770, 25 L.Ed.2d 21 (1970). One commentary has implicitly stated
that this rule applies to the intra-union remedies a railroad
employee might have at his disposal. 23 Fed.Proc., L.Ed. §
52:2016. Therefore, accepting this as true, the defendants'
argument would certainly have merit since if there exists no
requirement of exhaustion of even effective intra-union remedies,
tolling of the limitations period would not be necessary or
proper. However, this Court is not convinced that the Supreme
Court in Czosek intended to remove the exhaustion of intra-union
remedies requirement since that precise issue was not before it.
Further, the Court sees no reason why the Supreme Court would
require exhaustion of effective intra-union remedies in other
labor contexts and not in the railroad context. Therefore, this
Court will proceed on the premise that exhaustion of intra-union
remedies by a railroad employee is governed by the same
principles set forth by the Supreme Court in other labor cases.
The Supreme Court has held that prior to filing suit a grievant
need not exhaust internal union remedies unless the exhaustion
would afford "complete relief" to the grievant. Clayton v. UAW,
451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Implicit in
the defendants' argument is that if a plaintiff need not exhaust
internal union remedies because they would not afford him
complete relief, his attempt to exhaust them should not toll the
running of the statute of limitations. In other words, if the
plaintiff reaps the benefit from the no exhaustion rule, he must
also pay the costs.
Resolution of this dispute requires the Court to define the
interrelationship of two distinct legal doctrines. The purpose of
exhaustion doctrines traditionally has been to encourage private
rather than judicial resolution of disputes. On the other hand,
the purpose behind the six-month statute of limitations is a
rapid resolution of labor disputes. Del Costello, 103 S.Ct. at
However, in Clayton, the Supreme Court decided that exhaustion
of futile internal union remedies would not promote the ...