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MATTER v. BETHLEHEM STEEL CORP.

August 14, 1992

ROBERT MATTER, Plaintiff
v.
BETHLEHEM STEEL CORPORATION, BETHLEHEM MINES CORPORATION, BETHENERGY MINES, INC., FAWN MINING CORPORATION, C.L.I. GROUP OF COMPANIES and UNITED MINE WORKERS OF AMERICA, District 5, Defendants



The opinion of the court was delivered by: D. BROOKS SMITH

 SMITH, District J.

 Plaintiff Robert Matter filed a complaint against his employers BethEnergy Mines, Inc. (BethEnergy), *fn1" Fawn Mining Corporation (Fawn), and C.L.I. Group of Companies ("CLI"), *fn2" and his collective bargaining representative, United Mine Workers of America, District 5 (Union), in the Court of Common Pleas of Butler County on January 30, 1991, alleging that the corporate defendants had violated the terms of the National Bituminous Coal Wage Agreement of 1988 (Agreement), and that the Union had breached its duty of good faith and fair dealing. Defendants CLI and Fawn removed the action to this Court pursuant to 28 U.S.C. § 1441 on March 8, 1991. *fn3"

 CLI and Fawn assert, and plaintiff does not deny, that although plaintiff's complaint alleges common law breach of contract and breach of the duty of good faith and fair dealing, because plaintiff seeks to hold the employer liable for breach of the collective bargaining agreement and the Union liable for breach of its duty of fair representation, this suit actually arises under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. See Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir.1990); Childs v. Pennsylvania Brotherhood of Maintenance Way Employees, 831 F.2d 429, 433 (3d Cir.1987); Parke v. Bethenergy Mines, Inc., 732 F.Supp. 587, 589 (W.D.Pa.1990). Because the cause of action arises under the laws of the United States this matter is properly before this Court. See 28 U.S.C. § 1441(b).

 Before the Court at this time are the motions to dismiss filed by all defendants contending, inter alia, that this action is barred by the statute of limitations. *fn4"

 I.

 Plaintiff contends that defendant BethEnergy "began giving certain inside employees, specifically, members of the loading crews, one and a half (1 1/2) hours of overtime per day, five (5) days per week; the same opportunity for overtime was not afforded to plaintiffs." Complaint, P 21. Plaintiff further avers that the new mine owner, defendant CLI, has continued this practice, Complaint, P 22, and that the Union has not asked defendants to cease this activity. Complaint P 23.

 In January of 1990, plaintiff initiated a grievance in accordance with the comprehensive grievance procedure set forth in the Agreement by making an informal complaint to his foreman. Complaint, P 25; see Agreement, Art. XXIII § (c) (1). Plaintiff's foreman, Anthony Guley, informed plaintiff that he would not take any action regarding the overtime policy and advised plaintiff to file a formal grievance pursuant to the grievance procedure. Id. Plaintiff proceeded to step 2 on January 3, 1990, by submitting a BCOA-UMWA Standard Grievance Form to the Mine Committee and mine management. Complaint, P 24, P 26; Agreement, Art. XXIII § (c)(2).

 Step 2 requires the Mine Committee and mine management to consider a written grievance within 5 days of submission, and to complete the standard grievance form within 5 days of taking the matter under consideration. Id. Plaintiff was unsuccessful at step 2, and proceeded to step 3.

 Step 3 requires the grievance to be referred to a Union representative and an employer representative, Id., who must meet within 7 days to review the facts and pertinent contract provisions to arrive at a decision. Agreement Art. XXIII § (c)(3). If they cannot reach an agreement within 10 days of referral, the matter proceeds to step 4, which requires the matter to be referred to an arbitrator. Agreement, Art. XXIII § (c)(4).

 Plaintiff alleges that the Union representative and employer representative did not arrive at a decision or refer the matter to an arbitrator within 10 days as required by Step 4. Instead, on March 12, 1990 they agreed that the grievance would be withdrawn. Complaint, P 32. Plaintiff contends that the "grievance was withdrawn without a proper decision and without plaintiff's consent." Complaint, P 33. Plaintiff filed his complaint in the Court of Common Pleas on January 30, 1991, approximately ten and one-half months after defendants disposed of his grievance.

 II.

 It is well settled that hybrid Section 301 actions are subject to a six month statute of limitation. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983); Vadino, 903 F.2d at 260; Childs, 831 F.2d at 433. What is less settled is the date when such a cause of action accrues. Defendants contend that plaintiff's cause of action, accrued on March 12, 1990, when the Union and management representatives agreed that plaintiff's grievance would be withdrawn. Plaintiff, on the other hand, contends ...


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