The opinion of the court was delivered by: COHILL
Before us is defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for lack of subject matter jurisdiction and for failure to state a claim.
Plaintiff, William G. Clark, is an individual who was employed as a stationary engineer at the Two Oliver Plaza Building, Pittsburgh, Pennsylvania. He was a member of Local 95, International Union of Operating Engineers ("the Union"), the defendant in this action. Plaintiff's employer, Oliver Realty, Inc. was managing agent of Two Oliver Plaza and a member of a multi-employer bargaining association engaged in negotiations with the Union during the late winter and spring, 1983, when plaintiff's union was on strike and engaged in picketing at Two Oliver Plaza. Alleging picket line misconduct on two occasions, Oliver Realty terminated plaintiff's employment on May 20, 1983, the same day that the Union and plaintiff's employer reached a settlement on a new agreement. As part of the settlement, the parties agreed to resolve by arbitration the matter of plaintiff's discharge in connection with the alleged picket line misconduct.
Plaintiff was represented by the Union, and the case was heard by an arbitrator on August 2, 1983. The Arbitrator's opinion, dated October 27, 1983, sustained plaintiff's discharge.
The Union then presented the matter of the alleged wrongful discharge to the National Labor Relations Board ("NLRB"). The NLRB declined to issue a complaint.
On April 6, 1984, defendant removed the case to this court, pursuant to 28 U.S.C. § 1441. Defendant argued that, while captioned as an action in trespass, in essence, plaintiff had brought an action against the Union under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), for breach of the duty of fair representation.
Defendant has moved to dismiss the complaint on the basis of two arguments: (1) that the action is within the exclusive jurisdiction of the NLRB; and (2) that the statute of limitations has run on plaintiff's action.
Defendant first argued that jurisdiction lies exclusively with the NLRB because the breach of a union's duty of fair representation is an unfair labor practice. We find this argument to be without merit.
It is well established that an action alleging a breach of duty of fair representation is cognizable under section 301 of the LMRA. Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Nedd v. United Mine Workers of America, 556 F.2d 190, 197 (3d Cir. 1977); Brady v. Trans World Airlines, Inc., 401 F.2d 87, 94 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S. Ct. 680, 21 L. Ed. 2d 691 (1969). We agree with the position taken by defendant in the petition for removal that plaintiff has alleged an action under section 301. Furthermore, as we recently noted, in Nicely v. United States Steel Corp., 574 F. Supp. 184 (W.D. Pa. 1983), section 301 is an exception to the National Labor Relations Board's preemptive power and "'section 301 itself indicates that Congress did not intend an NLRB action to be a prerequisite for a section 301 suit '." Id. at 188. See Martin v. Adams Distribution Service, Inc., No. 83-27, slip op. at 10-11 (W.D. Mo. September 30, 1983) (unpublished)(quoting Vaca v. Sipes, 386 U.S. at 180-81)). We therefore hold that Plaintiff's claim is properly before this court.
Defendant's second argument that the action is barred by the statute of limitations, may be divided into two parts. First, defendant argues that the opinion of the United States Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) does not govern this case. In the alternative, defendant argues that if DelCostello does apply, the action is barred by the six month statute of limitations set out in that case.
Defendant first attempts to distinguish DelCostello by characterizing the instant suit as an appeal from an arbitration award and suggesting that it may be governed by the ninety-day state statute applicable to such awards. See ...