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August 15, 1985

TED KATSAROS, on his own behalf and on behalf of all persons similarly situated, Plaintiff,

The opinion of the court was delivered by: SPRIZZO



Plaintiff Ted Katsaros brings this action against his employer Transit-Mix Concrete Corporation ("Transit Mix") for breach of its collective bargaining agreement in violation of section 301 of the Labor Management Relations Act, 29 U.S.C ยง 185, and against Local 282 of the International Brotherhood of TEamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union") for breach of duty of fair representation.

 The facts of the case are set forth in this Court's previous Opinion and Order, see Katsaros v. Transit-Mix Concrete Corp., 585 F. Supp. 576 (S.D.N.Y. 1984), and will not be repeated herein except as necessary to resolve the instant motion. By that Order, the Court dismissed the first and second claims of plaintiff's complaint as time-barred, and granted leave to file an amended pleading. Plaintiff did so, and upon defendants' motion, and after a evidentiary hearing, the Court dismissed the first and second claims of the amended complaint as time-barred. Plaintiff now moves for reargument of that dismissal.

 Plaintiff was employed by Colonial Sand and Stone Co. ("Colonial") in 1976 when most of Colonial's assets were purchased by Transit-Mix. Pursuant to the relevant collective bargaining agreement, Colonial employees like plaintiff who were not immediately given work with Transit-Mix were placed at the end of the Transit-Mix seniority list, and were advised by the Union and by Transit-Mix that they would be notified of available work when their name reached the top of the list. Plaintiff was never notified of any available work, although he alleges others who were listed after him on the seniority list were given work. He commenced this action on August 21, 1981.

 The claims at issue herein relate to the alleged failure of Transit-Mix to hire in accordance with the seniority list, and the allegedly inadequate representation by the Union at an arbitration held with respect to hiring from the the seniority list. *fn1" The Court dismissed these claims as barred by the six month statute of limitations applicable to such actions pursuant to DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 155, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), because the Court found that plaintiff's claims accrued, at the very latest, when plaintiff filed charges with the National Labor Relations Board ("NLRB") in June 1980 and the present action was filed more than a year later in August 1981. Since the NLRB charges were essentially similar to those upon which this action is based, *fn2" it is clear that as of June 1981, plaintiff knew or reasonably should have known of all the facts which are the factual predicate for his present action. Therefore, the instant action is untimely. See, e.g., Santos v. District Council of New York City, 619 F.2d 963, 969 (2d Cir. 1980); Former Frigidaire Employees Association v. International Union of Electrical, Radio and Machine Workers, 573 F. Supp. 59, 62 (S.D.Ohio 1983).

 Plaintiff now contends that the statute of limitations should have been tolled during the pendency of the NLRB proceedings, because those proceedings raised the same issues that plaintiff complains of here. Plaintiff argues that the NLRB proceedings placed defendants on notice of his claims, and therefore under the rationale of Burnett v. New York Central Railroad Co., 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965), American Pipe and Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), and Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., 707 F.2d 1030 (9th Cir. 1983), the limitations period should be tolled.

 The Court rejects this argument. The cases relied upon by plaintiff are factually and legally distinguishable. In Burnett, the plaintiff commenced a judicial action under the Federal Employers' Liability Act in state court. the defendants were served in the state action. The state court dismissed the complaint for improper venue, whereupon plaintiff promptly brought an identical action in federal court. Under those circumstances, the Supreme Court held it was consistent with congressional intent to toll the federal statute of limitations during the pendency of the state action. See 380 U.S. at 427-28. The Court noted that "the filing of a lawsuit 'itself shows the proper diligence on the part of the plaintiff which . . . statutes of limitation were intended to insure.'" Id. at 430 (quoting Goldlawr Inc. v. Heiman, 369 U.S. 463, 467, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962)). *fn3"

 American Pipe also involved a tolling of the statute of limitations during the pendency of a previous judicial action. In that case, a class action was timely commenced which encompassed plaintiffs' claims. The trial judge subsequently encompassed plaintiffs' claims. The trial judge subsequently ruled that the action could not be maintained as a class action because, although the other requirements of Fed. R. Civ. P. 23 were satisfied, the plaintiff class was not so numerous as to make joinder impracticable. Eight days later, more than sixty parties who had been putative members of the original class moved to intervene as plaintiffs. The Court held that the purported class members had originally "stood as parties to the suit," see 414 U.S. at 550-51, and that "the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs." Id. at 551. *fn4"

 Finally, Retail Sales is also inapplicable. That case did not involve a hybrid section 301/fair representation claim, but only sought relief pursuant to section 301. Therefore, state law governed the limitations and tolling provisions. As the Supreme Court noted in DelCostello, cases which apply state law do not apply here, see 462 U.S. at 162-63, 165 (distinguishing Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966)), because federal law governs limitations in hybrid actions. See id. at 162, passim.

 In the instant case, plaintiff brought no judicial action prior to the commencement of this suit. The only previous proceeding was an investigatory action brought and prosecuted by the NLRB, which is very different from a lawsuit brought by plaintiff to protect plaintiff's rights. The fact that the NLRB charges contained similar allegations to those made in this action is insufficient in itself to toll the limitations period, and did not notify defendants that they would have to defend against similar charges in federal court after the NLRB proceedings were concluded. *fn5"

 It follows that plaintiff's motion must be denied.


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