should be applied in such suits. Id. at 60 n.2, 67-72.
As to the second part of the Chevron test, whether a refusal to apply a decision retroactively would further operation of the rule, the Court of Appeals answered this question in the negative in Perez. The court cited the three purposes underlying DelCostello: the need for uniformity, the extremely short period provided in state statutes governing the vacation of arbitration awards, and the need for rapid final resolution of labor disputes. Perez, slip op. at 13-14.
While plaintiff had no notice of the DelCostello six-month limitations period, there was no prejudice in this case since the Pennsylvania Arbitration Act, the most analogous state statute of limitations, was amended in 1980 to shorten the applicable period from ninety to thirty days. Pennsylvania Arbitration Act, 42 Pa. C.S.A. § 7314(b) (1980). The six-month period made retroactive in this circuit by the Perez decision actually extended plaintiff's time to file. This factor leads to consideration of the third part of the Chevron test, whether DelCostello, retroactively applied, would produce a substantial inequitable result involving injustice or hardship. Since the retroactive application of DelCostello lengthened plaintiff's time to file from the thirty-day limitation set by the Pennsylvania Arbitration Act, the result is not inequitable. See Fedor v. Hygrade Food Products, 533 F. Supp. 269 (E.D. Pa.), aff'd, 687 F.2d 8 (3d Cir. 1982) (three-month old claim dismissed under thirty-day statute). Plaintiff in this case was already time-barred under the prior thirty-day period. Finally, we feel that, like Perez, plaintiff in this case delayed in filing his action and "where a party gives such indication that he is sleeping on his rights, it is not inequitable to apply the statute of limitations retroactively to bar his claim." Perez, at 588. We hold that under the reasoning of DelCostello and Perez, plaintiff's claim is clearly time-barred.
The second issue raised is whether the facts alleged in plaintiffs amended complaint toll the statute of limitations. The amended complaint states that prior to May 3, 1983 (when the six-month statute of limitations ran) plaintiff was discussing his claim with the Pittsburgh office of the NLRB, and indicated his desire to have the Board issue unfair labor practice charges. Plaintiff was told by the Board that he did not have a claim on which the Board could issue a complaint, and that he should file suit in federal court under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Amended Complaint, para. 2. Plaintiff argues that contacting the NLRB should toll the statute of limitations created by DelCostello.
We hold that the fact that plaintiff's amended complaint, pleading contacts and discussions prior to May 3, 1983 with the Pittsburgh office of the NLRB, does not serve to toll the statute of limitations with regard to his § 301 suit. We base our decision on the persuasive reasoning of the district court in the recent case of Martin v. Adams Distribution Service, Inc., 101 Lab. Cas. (CCH) P 11,015 (W.D. Mo. 1983). The facts of Martin are similar to those presently before us. The employee filed charges in February, 1983 with the NLRB against the company and the union as codefendants. The charges against the union were made prior to the filing of an amended complaint on May 19, 1983 which added the union as a defendant in a pending § 301 action against the company. Id. at 2. The union moved to dismiss the complaint as untimely since the § 10(b) period expired on March 22, 1983, the date six months after the union's refusal to pursue the claim beyond an initial grievance meeting. Martin argued, as plaintiff here does, that the running of the § 10(b) period was tolled for the two-month period that his charges were pending before the Board. The district court held that the statute was not tolled. Id. at 8-11.
As the court in Martin noted, we are of the opinion that where two separate parallel avenues of relief are provided, pursuit of one course of action does not toll the running of the statute as to the other. This concept is well-established in several areas of the law. See International Union of Electrical Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 50 L. Ed. 2d 427, 97 S. Ct. 441 (1976) (pursuit of grievance procedures under collective bargaining agreement does not toll period for filing charge with EEOC under Title VII); Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (statute of limitations as to § 1981 action not tolled during period Title VII claim pending before EEOC); Corson v. First Jersey Securities, 537 F. Supp. 1263, 1267-68 (D.N.J. 1982) (SEC administrative proceedings do not toll statute of limitations on § 10(b) action under Securities Exchange Act of 1934; administrative enforcement procedures wholly separate from and independent of private enforcement remedies).
In such cases, courts have stressed the dual nature of the remedies available. An action under section 301 is wholly distinct from an action under section 10, Vaca v. Sipes, 386 U.S. 171, 182 n.8, 17 L. Ed. 2d 842, 87 S. Ct. 903 n.8 (1967), and plaintiff has the ability to pursue both routes for redress. As the court noted in Martin, supra, ". . . section 301 itself indicates that Congress did not intend an NLRB action to be a prerequisite for a section 301 suit. Furthermore, there is no reason to believe Congress expected or intended a claimant from pursuing a section 301 action pending an action before the NLRB. The purpose behind the creation of the NLRB and the preemption doctrine do not apply to suits 'involving alleged breaches of the union's duty of fair representation' . . . [a] decision not to toll is also supported by Congress' desire, as evidenced by section 10(b), to ensure finality of private settlements of employer-employee conflicts within a relatively short period of time." Martin at 10-11 (quoting Vaca v. Sipes, 386 U.S. 171, 180-81, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967)).
Finally, since section 301 is an exception to the Board's preemptive power, and since the two remedies exist as parallel remedies, a failure to toll the period does not conflict with any federal policy of preemption. Martin at 9.
We find Martin to be on point, wholly persuasive, and applicable to the facts before us. We will therefore grant defendants' motion to dismiss the original and amended complaints.
AND NOW, to-wit, this 21st day of November, 1983, it is hereby ORDERED, ADJUDGED and DECREED that defendants' motion to dismiss the original and amended complaints shall be, and hereby is, GRANTED, with prejudice.
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