Edward C. Hester v. International Union of Operating Engineers

878 F.2d 1309, 132 L.R.R.M. (BNA) 2011, 1989 U.S. App. LEXIS 11233, 1989 WL 74339

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 31, 1989
• Docket: 85-7699
• Status: Published

Opinions

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES.

Before TJOFLAT and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The Supreme Court vacated our prior decision in this case, 818 F.2d 1537, clarified on petition for rehearing, 830 F.2d 172 (1987), and remanded the case to us in light of its recent decision in Reed v. United Transportation Union, 488 U.S.-, 109 S.Ct. 621, 102 L.Ed.2d 665 (1988). 488 U.S.-, 109, S.Ct. 831, 102 L.Ed.2d 963 (1988). The parties have briefed the issue of Reed’s impact on our prior decision.

I.

In our prior opinion we concluded that “mixed” labor unions, i.e., labor unions that represent employees working for private employers and also employees working for the federal government or government-owned corporations, are subject to the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-503. We unanimously held, therefore, that the district court had subject matter jurisdiction to entertain a suit brought by plaintiff-appellant Edward C. Hester, a member of the International Union of Operating Engineers, against the Union and two of its locals alleging, inter alia, that the Union had breached its duty of fair representation and had violated certain safeguards against improper disciplinary actions. On petition for rehearing we further clarified this portion of our opinion and concluded that Hester had not alleged facts sufficient to state a cause of action for breach of duty of fair representation. See generally 818 F.2d at 1538-43 (Parts I and II of our prior opinion) and 830 F.2d at 174-76. The Supreme Court’s recent decision in Reed does not address any of these issues, thus we reaffirm our prior opinions as to these holdings. Specifically, we reaffirm Parts II.A, B, and C, the last of which we added on petition for rehearing.

In Part III.A of our prior opinion, we followed Davis v. UAW, 765 F.2d 1510 (11th Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 1284, 89 L.Ed.2d 592 (1986), an earlier precedent of this circuit, and applied a six-month limitations period to suits brought by a union member against his union pursuant to section 102 of LMRDA. 818 F.2d at 1543-44. In Reed, however, the Supreme Court ruled that the proper statute of limitations for claims arising under one provision of the LMRDA “bill of rights” is governed by state general or residual personal injury statutes. Reed involved a claim arising under 29 U.S.C. § 411(a)(2), the LMRDA “bill of rights” free speech and assembly provision. Hester’s claim arises under 29 U.S.C. § 411(a)(5), the “Safeguards against improper disciplinary action” provision of the “bill of rights.” Nevertheless, we find no reason to distinguish between claims brought under these two provisions, thus we follow the rule the Court articulated in Reed and apply Alabama’s residual personal injury one-year statute of limitations to claims arising before January 9, 1985, such as Hester’s. Ala.Code § 6-2-39(a)(5) (repealed 1985).¹ Cf. Ingram v. Steven Robert Corp., 547 F.2d 1260 (5th Cir.1977) (applying this statute of limitations to claims brought under §§ 1981, 1983, & 1985(3); Dumas v. Mount Vernon, 612 F.2d 974 (5th Cir.1980) (same).

II.

Part III.B of our prior opinion next turned to the question of when the applicable statute of limitations began to run. Judge Tjoflat disagreed with us on this point, and reasoned that the statute of limitations began running on October 7, 1983. 818 F.2d 1548-56 (Tjoflat, J., dissenting). Because Hester filed his action in federal court on November 7, 1984, more than one year later, Hester’s action would still be time barred under Judge Tjoflat’s view. Thus, the application of a one-year statute of limitations does not obviate the need to address this issue. Reed sheds no light on this question.

We adhere to our prior view that we should apply the rule of Proudfoot v. Seafarer’s International Union, 779 F.2d 1558 (11th Cir.1986), vacating in part 767 F.2d 1538 (11th Cir.1985), and remand for the district court to determine when Hester knew or should have known of the Union’s “final action,” i.e. the point where the grievance procedure was exhausted or otherwise broke down. Thus we reaffirm Part III.B of our prior opinion in this regard.

1 . For claims arising after the 1985 amendment, Alabama now provides a two-year residual statute of limitations. Ala.Code § 6-2-38(1) (1988 Supp.). This, however, does not apply to Hester’s claim.