Unpublished Disposition, 848 F.2d 1242 (9th Cir. 1984)
Annotate this CaseRobert KAUTH, Plaintiff-Appellant,v.SAN JOSE NEWSPAPER GUILD, LOCAL 98, et al., Defendants-Appellees.
No. 86-1724.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 14, 1988.Decided May 27, 1988.
Before CHAMBERS, SCHROEDER and FLETCHER, Circuit Judges.
MEMORANDUM*
Robert Kauth1 appeals the district court's order granting summary judgment against him on his complaint alleging federal claims of wrongful termination and breach of the duty of fair representation and state contract and tort claims. The district court found that the complaint was barred by a six month statute of limitations. We affirm the decision. We review the entry of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).
A suit by an employee against an employer and a union alleging wrongful termination and breach of the duty of fair representation is governed by a six month statute of limitations. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 172 (1983). Where a suit alleging breach of the duty of fair representation seeks to overturn an unfavorable arbitration award, the six month period accrues when the employee learns of the arbitrator's award. Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986).
Kauth's discharge from the San Jose Mercury News was upheld by an arbitrator on December 9, 1983. Although Kauth learned of the arbitrator's award December 16, 1983, he did not file the complaint here at issue until August 17, 1984. Because the action was filed more than six months after Kauth learned of the arbitrator's decision, it is barred by the statute of limitations.
We find no basis in the record for tolling the statute. Kauth's allegations that he relied on representations by the union's attorneys which deterred him from filing timely are not supported in the record by specific facts. See Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207, 208 (9th Cir. 1981).
Kauth's remaining state law claims are either preempted by federal law, see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985) or do not allege facts sufficient to support them. The libel claim is barred by the one year California statute of limitations. Cal. Code Civ.P. Sec. 340. Accordingly, these claims were properly dismissed.
The judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Kauth, who was proceeding pro se in this matter, died May 13, 1987. His mother, Edna Nelson, has been substituted in place of the deceased and is represented by counsel
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