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CAMPBELL v. MCLEAN TRUCKING CO.

September 5, 1984

JAMES CAMPBELL, JO ELAINE CAMPBELL and JOSEPH CASTIGLIA, Plaintiffs, against McLEAN TRUCKING COMPANY and CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 445, Defendants.


The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

NEAHER, District Judge.

 Plaintiffs James Campbell and Joseph Castiglia filed suit on April 8, 1983 under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against McLean Trucking Company ("McLean") and Chauffeurs, Teamsters and Helpers Local 445 ("Local 445"). *fn1" In claim one against McLean alone, plaintiffs seek redress for alleged conduct which sounds in blacklisting. In claim two through five, plaintiffs request relief against McLean and Local 445 for, respectively, wrongful discharge and breach of the duty of fair representation.

 Pursuant to Fed. R. Civ. P. 12(b), defendants have moved to dismiss all claims. McLean maintains that claim one is barred by the doctrine of preemption. Both defendants assert that claims two through five are precluded by the applicable statute or limitations.The Court agrees with defendants' contentions and, accordingly, grants their motions to dismiss for the reasons which follow. *fn2"

 FACTS

 Plaintiffs, who had been terminated once previously but ordered reinstated, were employed at McLean's Newburgh, New York, break bulk facility until discharged on June 28, 1980. That final firing was assertedly for leading an unauthorized work stoppage, stemming from a dispute concerning a regularly scheduled coffee break. Not having been employed in the trucking industry since then, plaintiffs charge McLean with using its influence to thwart their hiring elsewhere.

 In any event, plaintiffs contested the discharge by filing a grievance with the Joint Local Grievance Committee. They were represented by Local 445 at those proceedings.The panel deadlocked and the case was submitted to the New York State Board of Mediation. Issued in October 1980, that body's decision upheld the firings.

 Presumably quite unsatisfied with that result, plaintiffs sought relief from the National Labor Relations Board (NLRB). An Administrative Law Judge (ALJ) rendered a December 31, 1981 decision for plaintiffs. McLean took exceptions and those objections are still pending before the NLRB.

 On April 8, 1983, plaintiffs filed this action.

 DISCUSSION

 A. Claims Two through Five and DelCostello

 As each plaintiff has done in claims two through five, an individual employee may bring an action under $ 301 charging an employer with violating the collective bargaining agreement and a union with violating its duty of fair representation. Such an action is referred to as a Vaca-Hines or hybrid suit. See Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976).

 Until recently, the time period governing these hybrid actions was unsettled because congress has not enacted a statute of limitations for them. Melin v. Arcata Graphics, 556 F. Supp. 177, 179 (W.D.N.Y. 1983).That uncertainity, however, no longer exists. In June 1983, the Supreme Court determined in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 2285, 76 L. Ed. 2d 476 (1983), that the statute of limitations for a § 301 suit is six months. That time length was borrowed from the National Labor Relations Act (Act) § 10(b), 29 U.S.C. § 160(b).

 Plaintiffs filed this action two months before DelCostello was rendered. They acknowledge in their Brief at p. 4 that "had the instant case been filed today, or any time after DelCostello . . ., such a six-month statute of limitations would be applicable. . . ." Therefore, relevant to claims two through five, the obvious question is whether the DelCostello decision should be given retroactive effect.

 All but one Circuit considering this question have found DelCostello retroactive. Perez v. Dana Corp., 718 F.2d 581 (3d Cir. 1983); Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir. 1983); Edwards v. Sea Land Service, Inc., 720 F.2d 857 (5th Cir. 1983); Curtis v. International Brotherhood of Teamsters, Local 299, 716 F.2d 360 (6th Cir. 1983); Storck v. International Brotherhood of Teamsters, Local Union 600, 712 F.2d 1194 (7th Cir. 1983); Lincoln v. District 9 of the International Ass'n of Machinists and Aerospace Workers, 723 F.2d 627 (8th Cir. 1983); Hand v. International Chemical Workers Union, 712 F.2d 1350 (11th Cir. 1983). Contra Edwards v. Teamsters Local No. 36, 719 F.2d 1036 (9th Cir. 1983), cert. denied, 465 U.S. 1102, 104 S. Ct. 1599, 80 L. Ed. 2d 130 (1984); Barina v. Gulf Trading and Transportation Co., 726 F.2d 560 (9th Cir. 1984).

 The Second Circuit applied DelCostello retroactively in Assad v. Mount Sinai Hospital, 703 F.2d 36 (2d Cir. 1983), vacated, 464 U.S. 806, 104 S. Ct. 54, 78 L. Ed. 2d 73 (1983), on remand, 725 F.2d 837 (2d Cir. 1984). Yet, the Second Circuit did so without expressly addressing the possibility of relief from such a utilization under Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), which provides a three-prong test to determine the breadth of a judicial decision. Seizing upon that absence in Assad, plaintiffs argue that a Chevron analysis is appropriate here. Perhaps, ...


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