The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
James Dukes ("Dukes") brought this suit under § 301 of the
Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185,
alleging that defendant Local 7-765, Oil, Chemical, & Atomic
Workers International Union ("the Union") failed to represent
him adequately in grieving his May, 1982 discharge from the
employ of defendant, Stauffer Chemical Co. ("Stauffer"). Before
the Court is the Union's motion to dismiss, which argues that
Dukes did not bring this suit within the relevant statute of
limitations, and that, in any event, the complaint fails to
state a claim for relief. For the reasons stated below, we hold
that the complaint is untimely, and on that basis alone we
grant the Union's motion to dismiss.
We must not grant this motion to dismiss unless it appears
beyond doubt that Dukes can prove no set of facts entitling him
to relief. See Hishon v. King & Spalding, ___ U.S. ___, 104
S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). We must
take as true, moreover, all material allegations of fact in the
complaint. With these standards in mind, we consider Dukes'
Dukes alleges that he worked for Stauffer for "a substantial
period of time" until May 17, 1982, when Stauffer fired him. He
claims that he was fired without just cause, in violation of
the collective bargaining agreement between Stauffer and the
Union, which allowed employee discharges for just cause only.
Stauffer apparently claims that it fired Dukes for fabricating
a reason for missing work one week before the discharge.
Dukes alleges that he made a "timely" demand on the Union to
file a grievance on his behalf. We will assume that he made
such a demand immediately following his discharge. However, he
did not hear from the Union at all until January, 1984, some
eighteen months after the discharge. A few months before that,
on October 10, 1983, Dukes had written the Union for advice as
to the status of his grievance. Dukes also apparently made some
oral inquiries about his grievance. However, the complaint
alleges, and Dukes' brief also states, that his first
communication with the Union about the grievance came in the
October 10, 1983 letter.
On June 20, 1984, the newly elected President of the Union,
Carl Strange, told Dukes that a grievance had in fact never
been filed on his behalf. Dukes filed this complaint one month
later, on July 25, 1984. The complaint alleges that the Union
violated its duty of fair representation, and that Stauffer
breached the collective bargaining agreement by firing him
without just cause.
Dukes and the Union agree that under DelCostello v.
International Brotherhood of Teamsters, 462 U.S. 151, 103
S.Ct. 2281, 2282, 76 L.Ed.2d 476 (1983), the six month
limitations period of § 10(b) of the National Labor Relations
Act, 29 U.S.C. § 160(b), governs suits alleging unfair
representation by Unions. Because we hold below
that Dukes' cause of action accrued before June 8, 1983, the
day DelCostello was decided, we note that DelCostello
applies retroactively to this case. Landahl v. PPG
Industries, 746 F.2d 1312 (7th Cir. 1984).
The Union argues that under its collective bargaining agreement
with Stauffer, any grievance must be filed within ten days
after the incident sparking the grievance. Thus, it concludes
that the cause of action accrued on May 27, 1982, the last day
the Union could have filed a grievance. Dukes does not dispute
the existence or relevance of this ten day provision, but
argues that he made several inquiries about his grievance, that
the Union led him to believe that it was processing his
grievance, and that he did not learn about the Union's failure
to file his claim until June, 1984. He concludes that the cause
of action did not accrue until then, when he actually learned
of the Union's inaction.
It might be that Dukes did not actually learn of the alleged
breach until June, 1984, but the limitations period begins to
run "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) (citations
and internal quotations omitted), cert. denied, ___ U.S. ___,
104 S.Ct. 976, 79 L.Ed.2d 214 (1984). We hold that Dukes should
have discovered the Union's violations long before June, 1984.
According to the complaint he first inquired about the
grievance on October 10, 1983, about 16 1/2 months after his
discharge. A reasonably diligent employee would have at least
inquired much sooner, certainly within six months or even a
year following the discharge. Had Dukes done so, and had the
Union acted as if it had filed a grievance, as alleged in the
complaint, Dukes might have had a basis for arguing that the
cause accrued much later or that the statute should be tolled.
But Dukes slept on his rights far too long. The Union's acts
following the October 10, 1983 inquiry could not revive a claim
that had long since expired.
This case is very similar to Metz. There also the Union
failed to grieve the employee's discharge, and the employee
waited about thirteen months following the Union's last action
before filing her suit. 715 F.2d at 304. The Court held that
she reasonably should have acted sooner to learn of the Union's
alleged violation of its duty to her. Id. Dukes has not tried
to distinguish — and, we believe, cannot distinguish — Metz.
Accordingly, we will grant the Union's motion to dismiss the
claim against it. It follows that Dukes' claim against Stauffer
is also time-barred.*fn1 Metz, 715 F.2d at 306. Thus, the