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March 30, 1989

BRIAN NICELY, Plaintiff,
USX (formerly UNITED STATES STEEL), A corporation, and UNITED STEELWORKERS OF AMERICA, A Labor Organization, Defendants

The opinion of the court was delivered by: MENCER


 The instant matter is before the Court on a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed on behalf of the defendants, USX and United Steelworkers of America ("USWA").

 On June 12, 1985 the plaintiff, Brian L. Nicely ("Nicely"), filed a grievance #EET-85-46 with the USWA against USX alleging that USX breached the collective bargaining agreement, when it failed to assign him as a welder. In his present complaint Nicely asserts that USWA breached its duty of fair representation when Caleb Scott, USWA's Step 3 staff representative, formally withdrew his grievance, rather than appeal it to arbitration, through a September 11, 1987 letter to USX. Accordingly, in the instant matter Nicely has alleged a cause of action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), and a fair representation action pursuant to the National Labor Relations Act, 29 U.S.C. § 151 et seq. These actions are identified as hybrid § 301/fair representation cases. Here, Nicely seeks injunctive relief, backpay, interest, costs and attorneys' fees from USX and USWA and punitive damages from USWA.

 Primarily, the defendants assert that Nicely's claims are barred by the six-month statute of limitations established by DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). In DelCostello the Supreme Court held that the six-month statute of limitations set forth in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, is the proper statute of limitations for suits where an employee sues both his employer for breach of the collective bargaining agreement and his union for violating its duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1976). See also Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981); Bey v. Williams, 590 F. Supp. 1150, 1153 (W.D.Pa. 1984). This Court finds the DelCostello standard to be the proper limitations period for this suit.

 The defendants present the affidavit of Caleb Scott which states that Scott informed Nicely of the withdrawal of Nicely's grievance at either the August 26, 1987 or the September 30, 1987 union meetings. Therefore, the defendants assert that Nicely, by filing this complaint on March 31, 1988, filed one day after the running of the statutory period. In response, Nicely contends that Scott did not inform him of the withdrawal of his grievance until 8 weeks after August 3, 1987, which would be October 3, 1987. (August 3, 1987 was the day on which Caleb Scott and John McCluskey, the staff representative for USX, discussed Nicely's grievance.)

 This Court finds that the statute of limitations begins to run when it becomes clear that further internal appeals would be futile. See Scott v. Local 863, International Brotherhood of Teamsters, 725 F.2d 226, 229 (3d Cir. 1984) (citing Clayton v. Automobile Workers, 451 U.S. 679, 689-693, 101 S. Ct. 2088, 2095-97, 68 L. Ed. 2d 538 (1981)); See also Dowty v. Pioneer Rural Electric Co-op., Inc., 770 F.2d 52, 56 (6th Cir.) cert. denied, 474 U.S. 1021, 106 S. Ct. 572, 88 L. Ed. 2d 557 (1985) (limitations period begins to run when plaintiff knows or should have known of the union's alleged breach); DelCostello v. International Brotherhood of Teamsters, 588 F. Supp. 902, 909, n. 21 (D.Md. 1984) affirmed 679 F.2d 879 (4th Cir. 1984). Because of the disputed notice issue, this Court determines that the date on which Nicely knew or should have known that the USWA would no longer process his grievance is a genuine issue of material fact.

 Second, the defendants seek to have this Court strike Nicely's demand for a jury trial. In Leach v. Pan American World Airways, 842 F.2d 285 (11th Cir. 1988), the Court of Appeals for the Eleventh Circuit, relying on United Parcel Service, Inc. v. Mitchell, 451 U.S. at 62 n.4, 101 S. Ct. 1559 at 1564 n.4, 67 L. Ed. 2d 732 (1981), and disregarding Cox v. C.H. Masland & Sons, 607 F.2d 138 (5th Cir. 1979), applied the criteria outlined in Ross v. Bernhard, 396 U.S. 531, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970), for deciding whether the Seventh Amendment required a jury trial. The Eleventh Circuit held that because the arbitration award stands between the employee and any relief which he may be awarded against the company, the "suit against the employer is 'inextricably intertwined' with that against the union." Id. at 290. Additionally, the Eleventh Circuit found that the statutory scheme of labor law provided the "imperative circumstances" under which a jury trial was not required. The Eleventh Circuit also enunciated the opinion that monetary damages were not necessarily a legal remedy. The Eleventh Circuit concluded that it could not separate the legal and equitable remedies and, therefore, a jury trial was not required by the Seventh Amendment.

 In King v. Fox Grocery Co., 678 F. Supp. 1174 (W.D.Pa. 1988), Judge Weber analyzed the issue in a similar manner as the court in Leach. Relying on Mitchell and DelCostello, the court held that the hybrid action is most "likened to an unfair labor practice action," which is a suit in equity that does not require a jury. King, 678 F. Supp. at 1176. The court, although conceding that the § 301 action for backpay is an action providing for a legal remedy, found that because "all relief flows from equitable remedies" and because Congress has created a complex federal statutory scheme without providing for a jury, a jury trial was not required. King, 678 F. Supp. at 1177.

  In Quinn v. DiGiulian, 238 U.S. App. D.C. 247, 739 F.2d 637 (D.C. Cir. 1984), the Court of Appeals for the District of Columbia, relying on Curtis v. Loether, 415 U.S. 189, 194, 94 S. Ct. 1005, 1008, 39 L. Ed. 2d 260 (1974), held that the Seventh Amendment applies to statutory claims, if the statute creates legal rights and remedies enforceable in an action for damages. The court also found that because the Supreme Court in DelCostello found, in view of Curtis, that the nature of the remedies sought is a better clue than the common law analogy, a judge must send to a jury the question whether the union breached its duty and what damage, if any, the plaintiff suffered as a consequence.

 This Court finds the Fourth Circuit's reasoning in Terry v. Chauffeurs, Teamsters & Helpers, Local 391, 863 F.2d 334 (4th Cir. 1988), persuasive. The Fourth Circuit, noting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959), first asked whether the suit was in the nature of a suit at common law. The Fourth Circuit then found that the "imperative circumstances" required by Ross to strike a jury demand were only those in which "irreparable harm" would arise. Third, the court, citing Ross, 396 U.S. at 538, 90 S. Ct. at 738, noted that the Seventh Amendment depends on the nature of the issue to be tried, rather than the character of the overall action. Thus, the Fourth Circuit concluded that the rights and remedies involved in a § 301/fair representation action were typically enforced in an action at law. Not only is it a jury issue whether the employer breached the collective bargaining agreement but it is also a jury issue whether the union breached its duty of fair representation. In sum, the plaintiff is entitled to a jury trial of all identifiable legal issues such as declaratory relief and damages.

 In Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 16 L. Ed. 2d 192, 86 S. Ct. 1107 (1966), the Supreme Court characterized a § 301 cause of action as a contract action. The Court observed:

The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law.

 Id. 383 U.S. at 705, *fn7" , 16 L. Ed. 2d at 199, note 7. The Supreme Court also found that differing state limitations periods for § 301 actions would not disrupt federal uniformity:

The need for uniformity, then, is greatest where its absence would threaten the smooth functioning of those consensual processes that federal labor law is chiefly designed to promote -- the formation of the collective agreement and the private settlement of disputes under it. For the most part, statutes of limitations come into play only when these processes have already broken down. Lack of uniformity in this area is ...

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