Follin v. Safeway, Inc

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TOMMY E. FOLLIN, SR.,
Plaintiff-Appellant,
v.
SAFEWAY, INCORPORATED; MILK
DRIVERS AND DAIRY EMPLOYEES
UNION LOCAL NO. 246, I.B.T.,
No. 97-2398
Defendants-Appellees,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA; DRIVERS, CHAUFFEURS AND
HELPERS, LOCAL 639, I.B.T.,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Frederic N. Smalkin, District Judge.
(CA-97-1057-S)
Submitted: September 8, 1998
Decided: November 23, 1998
Before WIDENER and NIEMEYER, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Joe C. Ashworth, Leonardtown, Maryland, for Appellant. John R.
Mooney, MOONEY, GREEN BAKER, GIBSON & SAINDON, P.C.,
Washington, D.C.; Harry W. Burton, Scott B. Gilley, MORGAN,
LEWIS & BOCKIUS, L.L.P., Washington, D.C., for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Tommy E. Follin, Sr. was employed as a dairy driver out of
Safeway Incorporated's distribution facility in Landover, Maryland,
and was represented by the Milk Drivers and Dairy Employees Union
Local 246, I.B.T., the exclusive bargaining agent for Safeway's
Landover-based dairy drivers. On June 13, 1996, at a meeting
attended by Follin, the Local 246 membership voted to merge with
the Drivers, Chauffeurs and Helpers, Local 639, I.B.T. On June 21,
1996, Follin filed a grievance alleging that the June 13th vote to trans-
fer the drivers to Local 639 violated a provision in an addendum to
the collective bargaining agreement between Local 246 and Safeway.
On or about October 16, 1996, Safeway told Follin to bid on delivery
routes posted on Local 639's bid board (previously Follin would have
bid on routes posted on Local 246's board). On October 19, 1996,
Follin wrote a letter to Ron Carey, General President of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America ("I.B.T."), protesting his transfer from Local 246
to Local 639. On April 9, 1997, Follin filed an action in the district
court alleging that Safeway had violated Section 301 of the Labor
Management Relations Act and that Locals 246, 639, and the I.B.T.
had breached their duty of fair representation by allowing the drivers
to be transferred from Local 246 to Local 639. The district court
granted the Defendants' motion to dismiss on the ground that Follin's
action was untimely filed. For the reasons that follow, we affirm.
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In DelCostello v. International Bhd. of Teamsters, 462 U.S. 151,
120 (1983), the Supreme Court held that hybrid suits brought against
employers pursuant to Section 301 of the Labor Management Rela-
tions Act and against unions for breach of duty of fair representation
are governed by the six-month statute of limitations set forth in Sec-
tion 10(b) of the National Labor Relations Act. See 29 U.S.C.
§ 160(b) (1994). The parties agree that Section 10(b)'s six-month lim-
itation period applies.
The question of when a federal cause of action "accrues" and the
related question of whether it is "tolled" by subsequent conduct or
events are federal questions determined by federal law. The general
rule is that a cause of action accrues when the plaintiff knows or
should know that a violation of his rights has occurred. See Cox v.
Stanton, 529 F.2d 47, 50 (4th Cir. 1975). In hybrid § 301/fair repre-
sentation suits, courts have stated that the claim arises when the plain-
tiff could first successfully maintain a suit based on that cause of
action, see Santos v. District Council of New York City & Vicinity of
United Bhd. of Carpenters & Joiners of Am., AFL-CIO , 619 F.2d 963,
968-69 (2d Cir. 1980), or when the claimant discovers, or in the exer-
cise of reasonable diligence should have discovered, the acts consti-
tuting the alleged violation. See Metz v. Tootsie Roll Indus., Inc., 715
F.2d 299, 304 (7th Cir. 1983) (and cases cited therein).
Based upon the above uncontested facts, we agree with Appellees
and the district court that Follin's action was untimely filed. As of
June 13, 1996, Follin was aware that his fellow drivers voted to trans-
fer from Local 246 to Local 639. It is clear that Follin was aware of
this fact because he filed a grievance on June 21, specifically referring
to the June 13 membership vote and his contention that the vote to
transfer drivers to Local 639 was in violation of the collective bar-
gaining agreement.*
Further, we do not find that Follin's letter to the I.B.T. General
President tolled the filing period. Traditionally, the doctrine of equita-
ble tolling has been applied sparingly, see Irwin v. Department of Vet-
erans Affairs, 498 U.S. 89, 96 (1990), and we have previously stated
_________________________________________________________________
*Specifically, Follin contended that the vote required unanimous con-
sent of all affected drivers and that he did not so consent.
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that the doctrine should be limited to circumstances in which a defen-
dant has wrongfully acted to prevent a plaintiff from discovering the
existence a cause of action. See English v. Pabst Brewing Co., 828
F.2d 1047, 1049 (4th Cir. 1987). Because Follin's letter did not
invoke any definite internal union procedure, the district court cor-
rectly held that it was insufficient to toll the six-month statute of limi-
tations period. See Pantoja v. Holland Motor Express, Inc., 965 F.2d
323, 328-29 (7th Cir. 1992).
Because we find that the district court correctly dismissed action
as untimely, we decline to address Follin's contention that the district
court erred in its alternative finding that the action failed on the mer-
its. Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented and argument
would not aid the decisional process.
AFFIRMED
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