Patrick J. Mellin, Plaintiff-appellant, v. United States Postal Service, American Postal Workers Union,afl-cio, Defendant-appellees, 53 F.3d 331 (6th Cir. 1995)

Plaintiff, Patrick J. Mellin, brought this action against the defendants, United States Postal Service ("USPS") and the American Postal Workers Union ("union"), alleging that (1) the USPS breached its collective bargaining agreement by failing to place him in a contractually mandated preferred assignment, and (2) the union breached its duty of fair representation by refusing to pursue his grievance against the USPS. The district court granted summary judgment in favor of the defendants because the action was barred by a six-month statute of limitations. Based on the following discussion, we affirm.

Mellin has been an employee of the USPS since 1984, and a member of the union since 1985. Employees at the USPS submit preferences to the management for shift and day-off assignments. Under the collective bargaining agreement, the USPS must award preferences for shift assignments in accordance with an employee's occupational group and level seniority dates.

Between February 2, 1988, and February 10, 1988, the USPS posted a vacancy notice for a level 9, electronic technician (ET 09) on tour III.¹  On March 26, 1988, Mellin received the tour III position on the contingency that he successfully complete all required training.

In March 1989, the USPS posted a vacancy form for two level 9, electronic technicians on tour II. On April 14, 1989, the USPS conditionally awarded these positions to Tyrone Flowers and Victor Ottenbreit. Also in April 1989, the plaintiff completed the requisite training, and was retroactively promoted to the tour III, ET 09 position.

On May 11, 1989, Mellin filed a grievance claiming that he should have been awarded one of the tour II, level 9 positions. The USPS denied this grievance on the basis of Article 38.6.A.6 of the collective bargaining agreement, which provides that an employee is required to remain in his duty assignment for nine months after his required training. Union craft director Richard Vaughn felt that the grievance was without merit, and chose not to pursue the grievance any further.

On December 18, 1989, Mellin's attorney wrote the local union president requesting the status of the May 11, 1989, grievance. Mellin wrote the union's national president with a similar request on January 27, 1990. In this letter, he acknowledged that there was no record of a timely Step 2 meeting on the grievance, as required under the collective bargaining agreement. In March 1990, Mellin learned that the union had decided not to proceed to arbitration with his May 11, 1989, grievance. On April 9, 1990, Mellin filed an unfair labor practice charge with the National Labor Relations Board regarding the grievance. In this charge, Mellin stated that the union had failed to properly pursue his grievances, and that the union would not further process these grievances.² 

Approximately one year later, on March 11, 1991, Mellin pursued his grievance through the union's internal appeal procedures by sending a letter to the president of the local union. On March 21, 1991, the president informed Mellin that there was nothing he could do to assist Mellin under the circumstances. On March 24, 1991, Mellin appealed to the union's executive board. The board, on June 6, 1991, affirmed the president's conclusion that Mellin's May 11, 1989, grievance was properly withdrawn. From there, Mellin was permitted to address the general union membership at its monthly meeting. Mellin did so, but not until January 1992--bypassing opportunities to address the membership in June, August, September, October, and November.

On February 4, 1992, a union subcommittee informed Mellin that his grievance had been properly handled. The full membership voted to accept the subcommittee report at its April 4, 1992, meeting, which Mellin did not attend.

On August 4, 1992, six months after being informed of the subcommittee's decision regarding his grievance, Mellin filed a hybrid breach of contract and unfair representation claim against the defendants. He alleged that (1) the USPS breached the collective bargaining agreement by failing to award him one of the two level 9, tour II positions, and (2) the union breached its duty of fair representation by arbitrarily failing to process his May 11, 1989, grievance beyond the first step of the grievance procedure.

On September 4, 1993, the district court granted summary judgment in favor of the defendants, finding that Mellin's action was filed outside of the six-month statute of limitations for a hybrid claim.

Hybrid claims for breach of contract and duty of fair representation are governed by a six-month statute of limitations. Del Costello v. Teamsters, 462 U.S. 151 (1983); Robinson v. Central Brass Mfg. Co., 987 F.2d 1235, 1238 (6th Cir.), cert. denied, 114 S. Ct. 92 (1993). A cause of action begins to accrue when the plaintiff knew or should have known that the union would not pursue the grievance. Robinson, 987 F.2d at 1239. In filing his charge to the NLRB in April of 1990, Mellin acknowledged that he was aware that the union had failed to pursue his grievance. The district court, therefore, properly found that Mellin's cause of action began to accrue in April 1990, at the latest. See id. at 1242 (tolling determination is "within the discretion of the district court"). Accordingly, Mellin should have filed the present action by October of 1990, yet he did not do so until August 4, 1992.³ 

Additionally, Mellin did nothing to toll the statute of limitations prior to its expiration in October 1990. First, Mellin's filing of an unfair labor practice had no tolling effect. Adkins v. International Union of Elec., Radio, & Mach. Workers, 769 F.2d 330, 335 (6th Cir. 1985). Second, although the pursuit of internal union remedies may toll the statute of limitations where a plaintiff has some possibility of relief, Robinson, 987 F.2d at 1242, any such pursuit in this case did not occur until March, 1991--several months after the statute of limitations had expired. Thus, the district court properly granted defendants' motion for summary judgment because Mellin failed to file this hybrid action within the applicable six-month statute of limitations.⁴ 

AFFIRMED.