On Appeal from the United States District Court for the District of New Jersey - Trenton, (D.C. Action No. 84-3925).
Before: ADAMS, GIBBONS, and STAPLETON, Circuit Judges
Appellant filed a complaint with the District Court on September 24, 1984, alleging a hybrid breach of contract/breach of the duty of fair representation claim against his employer-railroad, his union, and a union representative. The parties agree, for purposes of this appeal, that the appellant's cause of action accrued on March 25, 1984. Appellant thus filed his complaint within six months of the accrual of his cause of action. Appellant, however, failed to mail his complaint to the defendants until October 11, 1984.
In Sisco v. Conrail, 732 F.2d 1188 (3d Cir. 1984), we held that the six-month statute of limitations period of Section 10(b) of the National Labor Relations Act applied to a claim of unfair representation brought under the Railway labor Act, 45 U.S.C. §§ 151-188 (1976). We there followed DelCostello v. Intl. Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), which applied the limitations period of 10(b) to hybrid section 301/fair representation actions. The parties agree that 10(b) governs this complaint. They disagree, however, on whether service of process must occur within six months of the accrual of the cause of action or whether filing the complaint tolls the limitations period. The court below determined that both filing and service of process must be completed within six months, and consequently granted defendants' motions for summary judgment. We affirm.
Section 10(b) provides "No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the board and the service of a copy thereof upon the person against whom such charge is made" (emphasis supplied). Thus, under 10(b) the filing of the complaint with the National Labor Relations Board does not toll the limitations period. Instead, a copy of the charge must also be served on the defendants within the limitations period; service may be accomplished simply by mailing the copy. See 29 CFR § 102.113(a) (1984). In contrast, the general rule for a federal suit is that the
action is commenced, and the statute of limitations tolled, upon the filing of the complaint. See, e.g., Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 44 (CADC 1984); Fed.Rule Civ.Proc. 3; 2 J. Moore & J. Lucas, Moore's Federal Practice P 3.07[4.-3-2] (1984). While the time for service of process is not open-ended, see Fed. Rules Civ.Proc. 4(a), 4(j), it need not occur within the limitations period.
A majority of the courts that have addressed the question here presented have, like the court below, found that where the six month limitations period of 10(b) governs, the tolling provision of that section also applies. See Williams v. Greyhound Lines, Inc., 756 F.2d 818 (11th Cir. 1985); Dunlap v. Lockheed Georgia Co., 755 F.2d 1543 (11th Cir. 1985); Simon v. Kroger Co., 743 F.2d 1544, reh'g denied, 749 F.2d 733 (11th Cir. 1984), cert. denied, 471 U.S. 1075, 105 S. Ct. 2155, 85 L. Ed. 2d 511 (1985); Howard v. Lockheed Georgia Co., 742 F.2d 612 (11th Cir. 1984); Ellenbogen v. Rider Maintenance Corp., 621 F. Supp. 324 (RLC), slip op. (S.D.N.Y. 1985); Waldron v. Motor Coils Manufacturing Co., 606 F. Supp. 658 (W.D. Penn. 1985); Thompson v. Ralston Purina Co., 599 F. Supp. 756 (W.D. Mich. 1984); Hoffman v. United Markets, Inc., 117 L.R.R.M. 3229 (N.D. Cal. 1984). But see Simon v. Kroger Co., 471 U.S. 1075, 105 S. Ct. 2155, 85 L. Ed. 2d 511 (1985) (White, J., dissenting from denial of cert.); Thomsen v. United Parcel Service, 608 F. Supp. 1244 (S.D. Iowa 1985); LaTondress v. Local No. 7, I.B.T., 102 F.R.D. 295 (W.D. Mich. 1984); Williams v. E.I. Dupont de Nemours Co., 581 F. Supp. 791 (M.D. Tenn. 1983).
In Sisco we found that 10(b) "represents Congress' evaluation of the appropriate balance of interests between the need for prompt resolution of disputes n the one hand, and the interest in assuring adequate representation of employees on the other." Sisco, 732 F.2d 1188. Similarly, in DelCostello the Supreme Court stated:
At least as important as the similarity of the rights asserted in the two contexts, however, is the close similarity of the considerations relevant to the choice of a limitations a period. As Justice Stewart observed in (United Parcel Service, Inc. v. Mitchell):
"In § 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case...'the need for uniformity' among procedures followed for similar claims ... as well as the clear congressional indication of the proper balance between the interests at stake, counsels for adoption of § 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this." (451 U.S. at 70-71) (footnote omitted).
Delcostello, 462 U.S. at 170-71 (quoting Mitchell, 451 U.S. 56, 70-71, 67 L. Ed. 2d 732, 101 S. Ct. 1559 ...