Unpublished Disposition, 902 F.2d 39 (9th Cir. 1987)

MEMORANDUM^* 

Mary Franco appeals the district court's grant of summary judgment for American Gas Association Laboratories (AGA), AGA Employees' Union (Union), and AGA's Retirement Committee (AGARC) in her action under ERISA, section 301 of the Labor Management Relations Act (LMRA), the National Labor Relations Act (NLRA), and pendent state law claims.

Franco was employed by AGA from 1951 until after she suffered an injury on February 9, 1984. Subsequent to her injury, Franco hired three different attorneys who requested from AGA information concerning Franco's retirement benefits.

On May 11, 1987, Franco filed against AGA and the Union an unfair labor charge with the National Labor Relations Board and filed a suit against AGA, the Union and AGARC in federal court alleging federal and state pendent claims.

Thereafter, Franco also filed state law claims against AGA. These were removed to the federal court and consolidated with the action already in federal court.

The district court granted AGA summary judgment on all of Franco's federal and state counts. She appeals.

Franco first contests that her state law claims are not preempted by federal labor law. However, Franco's breach of contract claim requires an interpretation of the collective bargaining agreement between the Union and AGA. As such, the claim is preempted by section 301 of LMRA, 29 U.S.C. § 185. See Allis-Chalmers Corp. v Lueck, 471 U.S. 202 (1985). All of Franco's other claims are based upon Franco's assertion that the Union is a fraud. This assertion constitutes an unfair labor practice under section 8(a) (2) of the NLRA, 29 U.S.C. § 158(a) (2) and is preempted by that Act. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

Franco next argues that even if her claims are preempted by federal labor law, she is not, as the district court ruled, barred by the statute of limitations. Instead, Franco argues that the statute was tolled for her on the basis of mental incapacity.

Even assuming mental incapacity can in some circumstances be a ground for equitable tolling of the statute of limitations, Franco's retainer of attorneys within the statute of limitations period to investigate her rights to employee benefits acted to give her the "means to knowledge" that she must file any claim under the collective bargaining agreement within six months. See Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1050 (9th Cir.), cert. denied, 484 U.S. 986 (1987). Therefore, Franco may not claim mental infirmity tolled the limitations period. Although Franco's previous attorneys were not enlisted to resolve the specific disputes at issue here, their inquiries concerned related claims and the identical facts.

As to Franco's complaints that AGA's creation of a straw-union violated the National Labor Relations Act, the NLRB has exclusive jurisdiction of these claims. San Diego Building Trades v. Garmon, 359 U.S. 236 (1959); Cement Masons Health and Welfare Trust Fund v. Kirkwood-Bly, Inc., 520 F. Supp. 942 (N.D. Cal. 1981), aff'd, 692 F.2d 641 (9th Cir. 1982). Therefore, the district court was correct to dismiss.

Franco also contests the district court's finding that she failed to exhaust her administrative remedies and was therefore ineligible to sue under ERISA. Although the ERISA plan is clear that in order to contest the amount of benefits, the employee must notify the retirement benefits committee within 90 days, Franco claims the benefit of a summary of the plan sent to her which provided that members whose claims have been denied or ignored may file suit in state or federal court. However, the record indicates that Franco's claim was not ignored nor denied. Instead, she failed to respond to an inquiry requesting information needed to process her claim. Since Franco has failed even to exhaust the requirements of the summary plan, she is barred from suing under ERISA.

Finally, Franco contests the district court's finding that AGA was not a fiduciary under ERISA, and was therefore not subject to a suit for breach of fiduciary duties under ERISA, 29 U.S.C. § 1109. Under the plan, AGA created a committee to administer the plan. Therefore, it was the committee, and not AGA, which was the fiduciary. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir. 1985).

Therefore, the district court was correct in its grant of summary judgment against Franco.

AFFIRMED.