Jack Thomsen v. United Parcel Service, Inc., Local 710, International Brotherhood of Teamsters

792 F.2d 115, 5 Fed. R. Serv. 3d 278, 122 L.R.R.M. (BNA) 2865, 1986 U.S. App. LEXIS 25444
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 30, 1986
Docket19-1378
StatusPublished
Cited by7 cases

This text of 792 F.2d 115 (Jack Thomsen v. United Parcel Service, Inc., Local 710, International Brotherhood of Teamsters) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jack Thomsen v. United Parcel Service, Inc., Local 710, International Brotherhood of Teamsters, 792 F.2d 115, 5 Fed. R. Serv. 3d 278, 122 L.R.R.M. (BNA) 2865, 1986 U.S. App. LEXIS 25444 (8th Cir. 1986).

Opinions

HEANEY, Circuit Judge.

Local 710, International Brotherhood of Teamsters (Union) appeals from a district court order 608 F.Supp. 1244, denying its motion for summary judgment.

I. BACKGROUND

On December 16, 1983, United Parcel Service (UPS) discharged Jack Thomsen. On January 19, 1984, Thomsen filed a grievance protesting his discharge with a joint Union/UPS committee, which, after a hearing, upheld the discharge. Thomsen filed a complaint in district court on June 18, 1984, claiming that UPS had discharged him in violation of the collective bargaining agreement and section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and that the Union had breached its duty of fair representation in the ensuing grievance proceedings in violation of the National Labor Relations Act.

The Union sought dismissal of the action on the ground that it was barred under section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b),1 which requires that a fair representation action be filed and served within six months of the accrual of the cause of action. Although Thomsen had filed his action within the six-month limit, he had not effectively served the defendants until August 1,1984, after six months had elapsed.2 On May 15, 1985, the district court denied the Union’s motion, finding that the six-month statute of limitations had been tolled at the time of filing, and that the action was therefore timely. It then certified the matter to this Court pursuant to 28 U.S.C. § 1292(b).

II. DISCUSSION

Although there is no statute of limitations expressly applicable to hybrid section 301/fair representation cases, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court found that section 10(b) of the National Labor Relations Act was “designed to accommodate a balance of interests very similar to that at stake here,” id. at 169, 103 S.Ct. at 2293, and “borrowed” section 10(b)’s statute of limitations for the hybrid actions. The question remains, however, whether section 10(b)’s six-month service requirement is also applicable to the hybrid cases.

[117]*117We recognize that this issue has produced a split among several of the Circuits of the United States Courts of Appeals. The district court found that, in a hybrid section 301/fair representation complaint, the six-month statute of limitations is tolled by the filing of the complaint, and the plaintiff need not effect service within six months of the accrual of the cause of action. Subsequent to the district court’s decision, the Sixth Circuit adopted the same approach,3 also finding it consistent with DelCostello. See Macon v. ITT Continental Baking Co., 779 F.2d 1166 (6th Cir.1985). Although there is also support for the Union’s argument that, under DelCostello, the limitations period in these hybrid actions is not tolled until the complaint has been both filed and served, see Gallon v. Levin Metals Corp., 779 F.2d 1439 (9th Cir.1986); West v. Conrail, a Foreign Corp., 780 F.2d 361 (3d Cir.1985); Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir.1984), we are persuaded that the resolution of this issue by the district court is more consistent with the policies of federal labor law and the practicalities of this type of litigation.

The DelCostello Court focused on the fact that section 10(b) established a “6-month period for making charges of unfair labor practices to the NLRB,” see id., and did not address the service question. There was, however, no need for it to do so. The Court made it very clear that it was borrowing the limitations period from section 10(b) to fill a gap in federal law. There is no gap in federal law in regard to service requirements. As the district court stated, “[i]n federal suits to enforce federal rights, the general rule is that limitation periods are tolled by the filing of a complaint. See Fed.R.Civ.P. 3.” In Moore Co. v. Sid Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.1965), cert. denied, 383 U.S. 925, 86 S.Ct. 927, 15 L.Ed.2d 845, reh’g denied, 384 U.S. 914, 86 S.Ct. 1335, 16 L.Ed.2d 367 (1966), this Court held that

in a case such as this, based upon federal law and controlled by federal statute of limitation, * * * the commencement of the action in and of itself is sufficient to toll the statute. Federal Rule of Civil Procedure 3 reads: “A civil action is commenced by filing a complaint with the court.” Such rule in our view unmistakedly states in plain, clear, well-understood and unambiguous language that an action is commenced by filing the complaint. The rule sets forth no additional requirements or conditions. The history of the promulgation of the rule is set out by Judge Medina in Messenger v. United States [231 F.2d 328 (2nd Cir.)]. As there shown, suggestions were made that the action abate if jurisdiction by service of process was not obtained within sixty days. Judge Medina in viewing the history of the rule, states:
“In the end, however, no time was specified for the service of process, the Advisory Committee noting that the motion sanctioned by Rule 41(b) provided ‘a method available to attack unreasonable delay in prosecuting an action after it has been commenced.’ See Report of the Advisory Committee Containing Proposed Rules of Civil Procedure, p. 4 (April, 1937).”
It appears to us that Rule 41(b) provides adequate protection against unreasonable delay in serving process or in prosecuting the suit.

Moore Co., 347 F.2d at 922-23 (citations omitted).

The Sixth Circuit emphasized that

[t]he tolling provision of section 10(b) was designed for administrative proceedings and is inappropriate in the federal [118]*118judicial context. Indeed, it has long been recognized that Congress created the administrative courts system with quite different concerns from those which necessarily governed Article III courts. The service requirement of section 10(b) is necessary in NLRB proceedings because without it there would be no rule at all. In the federal courts, however, Fed.R. Civ.P.

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792 F.2d 115, 5 Fed. R. Serv. 3d 278, 122 L.R.R.M. (BNA) 2865, 1986 U.S. App. LEXIS 25444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jack-thomsen-v-united-parcel-service-inc-local-710-international-ca8-1986.