Unpublished Dispositionnotice: Sixth Circuit Rule 24(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Sixth Circuit, 762 F.2d 1011 (6th Cir. 1982)

The plaintiff appeals the judgment for the defendants in this action alleging wrongful discharge under Sec. 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and breach of the Union's duty of fair representation. The appeal was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The plaintiff was discharged on February 7, 1979 from his employment as a bus driver for Southeastern Michigan Transportation Authority (SEMTA). He filed a grievance under the terms of the collective bargaining agreement between SEMTA and Division 1564, Amalgamated Transit Union. The grievance proceeded to arbitration and ended in a November 14, 1979 settlement and release whereby SEMTA agreed to withdraw the discharge in return for the plaintiff voluntarily resigning his employment effective January 1, 1980.

The present hybrid Sec. 301/unfair representation action was filed in state court on October 8, 1981. Upon having the action removed to federal district court, the defendants moved for dismissal of the action on grounds the complaint was not timely filed under the six-month statute of limitations found in Sec. 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The district court found the motion meritorious and entered judgment for the defendants. This appeal followed.

In Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), the Supreme Court held that the Sec. 10(b) statue of limitations was applicable to all hybrid Sec. 301/unfair representation actions. In Smith v. General Motors Corp., 747 F.2d 372 (6th Cir. 1984) (en banc), this Court held that the Del Costello opinion was to be given retroactive effect. The plaintiff filed this action 23 months after the settlement and release which terminated the grievance proceedings and gave rise to his alleged cause of action. The plaintiff does not allege nor does the record suggest any conduct by the defendants which would have caused the statute of limitations to be tolled. Therefore,

It is ORDERED that the district court's judgment of September 14, 1982 be and it hereby is affirmed. Rule 9(d) (3), Rules of the Sixth Circuit.