Unpublished Disposition, 861 F.2d 268 (9th Cir. 1986)

MEMORANDUM^* 

The district court granted the Local's summary judgment motion on the grounds that appellants' cause of action against the Local for breach of its duty of fair representation was time-barred. We affirm.¹ 

A fair representation cause of action "accrues when the plaintiff is aware of the wrong and can successfully bring a cause of action." Acri v. Int'l Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1396 (9th Cir.), cert. denied, 479 U.S. 816, 107 S. Ct. 73, 93 L. Ed. 2d 29 (1986). Appellants' cause of action accrued November 9, 1985, on the date that appellants knew they would not be rehired by their employer, Brown and Haley.

The limitations period for the filing of a claim for breach of duty of fair representation is six months from the date it accrued. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169 (1983); Peterson v. Kennedy, 771 F.2d 1244, 1251 (9th Cir. 1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Appellants, however, did not file their complaint for breach of duty of fair representation until May 28, 1986, more than six months after their cause of action accrued. Therefore, appellants' cause of action was barred by the statute of limitations applicable to this case.

Appellants assert that the unions are estopped from arguing that the fair representation cause of action accrued on November 9, 1985, because as late as March 1986 union representatives Lou Hibdon and Al Meyer allegedly made illusory promises that they would find appellants new employment. Appellants apparently contend that the statute of limitations should be tolled under the doctrine of equitable estoppel. Appellants did not assert in their complaint or in the pretrial order, however, that the union representatives' alleged promises induced them not to file suit. Absent any detrimental reliance on these alleged promises, causing them to delay filing their suit, equitable estoppel is not a ground for tolling the limitations period. In re Marino, 813 F.2d 1562, 1566 (9th Cir. 1987). Furthermore, there is no "evidence of improper purpose on the part of the defendant [s], or of the defendant [s'] actual or constructive knowledge of the deceptive nature of [their] conduct," which is required to establish equitable estoppel. Funk v. Sperry Corp., 842 F.2d 1129, 1134 (9th Cir. 1988) (citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981)). See also Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044, 1050 (9th Cir.), cert. denied, --- U.S. ----, 108 S. Ct. 504, 98 L. Ed. 2d 502 (1987).

The unions' request for attorneys' fees is denied.

AFFIRMED.

WALLACE, Circuit Judge, dissenting:

The majority holds that the appellants' equitable estoppel argument was waived because they did not preserve the detrimental reliance issue in the pretrial order. The promise of alternative employment by the union is stated as an issue of fact by the appellants (plaintiffs' factual contention 9) and the union lists detrimental reliance as an issue of fact (defendant's factual contention 5). The pretrial order, taken as a whole, preserves the factual issue.

The majority also holds that there is no evidence of equitable estoppel. I disagree. The concrete facts alleged in the affidavits of Davis and Harris, together with reasonable inferences a jury could draw, are sufficient to raise material facts that should prevent summary judgment on this issue.

Thus, I believe the fact finder should decide whether the statute of limitations was tolled under the doctrine of equitable estoppel due to representations by the union which "lull [ed] the employee [s] into an untimely filing." McConnel v. General Telephone Co. of California, 814 F.2d 1311, 1317 (9th Cir. 1987).

I would reverse the summary judgment.