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Labor Law Gap-Filling: Federal Common LawIdeals Versus Litigation Realities

TIMOTHY A. KELLEY*

TABLE OF CONTENTS

1. INTRODUCTION ............................................................................... 437II. CONGRESSIONAL SILENCE AND STATUTE OF LIMITATIONS

B ORR OW IN G ................................................................................ 44 1A . The Traditional Practice ........................................................ 441B. DelCostello and the Hybrid Exception ................................... 446

III. APPLICATION OF DELCOSTELLO IN LABOR LITIGATION IN THE

FEDERAL COURTS ........................................................................ 452A . Trends in the Sixth Circuit ..................................................... 452

1. Limiting the Reach of DelCostello in the Sixth Circuit ..... 4532. Expanding the Reach of DelCostello in the Sixth Circuit. 457

B. Inconsistency in DelCostello Application Across the Circuits464IV. DELCOSTELLO IN CONTEXT: MOVING AWAY FROM THE FEDERAL

COMMON LAW APPROACH ........................................................... 468A. Putting the Collective Before the Individual .......................... 468B . Judicial Legislation ................................................................ 473

V . C ONCLUSION ................................................................................. 476

I. INTRODUCTION

While the Supreme Court famously denied the existence of a federalcommon law,' this sentiment does not reflect the reality of the modemfederal Judiciary. 2 Even though federal common lawmaking remains in many

* Articles Editor, Ohio State Law Journal; J.D. Candidate, The Ohio State Moritz

College of Law, 2011; B.A., The College of William and Mary, 2008. This Note isdedicated to the memory of my father, Doug, whose example of diligence, faith, andhumility continues to serve as an inspiration for all my endeavors. I am also indebted tomy mother, Nancy, sisters, Erin and Charla, and brothers-in-law Ben and Larry; yourlove and support has always sustained and continues to sustain me in all that I do.

1 See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federalgeneral common law.").

2 See Ernest A. Young, Preemption and Federal Common Law, 83 NOTRE DAME L.REV. 1639, 1640 (2008) (noting that despite the holding of Erie Railroad v. Tompkins, "itis well accepted that the federal courts retain common lawmaking powers in particularareas").

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respects a "puzzle," 3 evidence shows that it is nonetheless expanding toencompass a variety of areas of substantive law.4 One area of emergenceover the past half-century has been the federal labor common law, created bythe Supreme Court in order to carry out a perceived interest in uniformnational labor law as established by acts of Congress. 5 While contemplatingwhich substantive law to apply to lawsuits brought under the LaborManagement Relations Act (LMRA), the Supreme Court's answer was"federal law, which the courts must fashion from the policy of our nationallabor laws." 6 The Court contemplated a common law regime where"[f]ederal interpretation of the federal law will govern, not state law."7

Courts may be free to apply state rules if applicable and consistent withfederal policy; however, state law "will be absorbed as federal law and willnot be an independent source of private rights."'8

3 See Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 NW.U. L. REv. 585, 585-86 (2006). Tidmarsh and Murray argue that federal courts must beboth justified in order to explicitly create federal common law, and have a theoreticalbasis for exercising the discretion to apply the federal law. Id. at 587. This justificationand basis for discretion arises when states' self-interest in a controversy preventsapplication of state law, and neither the Constitution nor Congress has created anapplicable rule of decision. Id. at 588. Tidmarsh and Murray do not apply this analysis toareas where they say the Supreme Court has implied a federal common law fromcongressional action, such as federal labor law. Id. at 590-91.

4 See Martin H. Redish, Federal Common Law, Political Legitimacy, and theInterpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. REv. 761, 761(1989) ("[t]he Court continues to fashion discrete areas of purely judge-made substantivefederal law ....").

5 Federal preemption over state authority in the area of labor law originated withextensive New Deal legislation, notably the Wagner Act, commonly referred to as theNational Labor Relations Act (NLRA), later amended by the Taft-Hartley Act (or LaborManagement Relations Act (LMRA)). See WILLIAM B. GOULD IV, AGENDA FOR REFORM:THE FUTURE OF EMPLOYMENT RELATIONSHIPS AND THE LAW 47-49 (MIT Press 1993);STANLEY D. HENDERSON, LABOR LAW: CASES AND COMMENT 2 (2d ed. 2005). SupremeCourt interpretation of this statutory framework eventually led to the creation of thefederal common law used to adjudicate labor disputes. See Elizabeth Z. Ysrael, Note,Federal Common Law of Labor Contracts: Recognizing a Federal Claim of TortiousInterference, 86 COLUM. L. REv. 1051, 1053-54 (1986) (tracking the early developmentof federal labor law, and recognizing the Supreme Court's interpretation of § 301 of theLMRA as creating a federal labor common law); see also Katherine Van Wezel Stone,The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rightsand the New Deal Collective Bargaining System, 59 U. CHI. L. REv. 575, 593-94 (1992)(noting that the potential for federal preemption of state statutory and common law in thelabor field is "particularly vast").

6 Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957); see infra notes

228-31 and accompanying text for further discussion of Lincoln Mills.7 Lincoln Mills, 353 U.S. at 457.8 Id.

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This language from Textile Workers v. Lincoln Mills is most oftenconnected with federal preemption of state law claims arising out ofcollective bargaining disputes. 9 However, the Court has promulgated federallabor common law through another vehicle: gap-filling statutes oflimitations. In DelCostello v. International Brotherhood of Teamsters, theCourt created a unique labor cause of action distinct from the statutoryscheme: the "hybrid" claim, combining a plaintiff-employee's breach ofcollective bargaining claim against an employer under LMRA § 301 with abreach of duty of fair representation against a union.10 Congress provides noexpress statute of limitations for such a judicially-fashioned claim; in similarcirc*mstances, the federal court will normally identify the most analogousstate cause of action and apply its statute of limitations to the federal claim. " I

However, the DelCostello Court chose to look past state law, and insteadapplied the statute of limitations of a federal labor law it felt best promotedthe interests hybrid claims were perceived to balance. 12 While this may atfirst glance appear to be an inconsequential move, it was anything but: thestatute of limitations the Court applied to the hybrid action tolls in a mere sixmonths, 3 while state contract statutes that were traditionally applied to § 301claims generally provide for limitations periods that can last up to ten yearsand beyond. 14

This Note argues that by forging a six-month statute of limitations forhybrid § 301 actions in the name of federal labor law uniformity, theSupreme Court unintentionally created both a significant obstacle forplaintiff-employees seeking to assert their rights under collective bargainingin federal courts, and a powerful tool for defendant-employers seeking to

9 See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985); Teamsters Local v.Lucas Flour Co., 369 U.S. 95, 104 (1962). In Lucas Flour and Allis-Chalmers, the Courtheld that any § 301 action for breach of a collective bargaining agreement must bedecided under the federal common law, and that any state law claim purporting to allegea breach of a collective bargaining agreement must likewise be decided under federallaw. Allis-Chalmers Corp., 471 U.S. at 210 (citing Lucas Flour Co., 369 U.S. at 103-04).For a more detailed discussion on the preemptive effect of § 301, see infra note 121.

10 462 U.S. 151, 164-65 (1983).

11 Id. at 158-59 ("We have generally concluded that Congress intended that thecourts apply the most closely analogous statute of limitations under state law.").

12 Id. at 168-71 ("[W]e have available a federal statute of limitations actually

designed to accommodate a balance of interests very similar to that at stake here-astatute that is, in fact, an analogy to the present lawsuit more apt than any of thesuggested state-law parallels.").

13 See id.; 29 U.S.C. § 160(b) (2006).14 See, e.g., OHIO REv. CODE ANN. § 2305.06 (West 2010) (providing a fifteen-year

statute of limitations for breach of contract actions).

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keep those employees from pulling them into costly litigation.15 While"straightforward" § 301 claims may be subject to generous state contractlimitations periods, a similar claim that is coupled with a unionrepresentation claim must be brought within a very tight time frame. Thus, anemployee who is obligated to exhaust all remedies contained in a collectivebargaining agreement is further punished by having to submit his or herclaim against the employer and union within six months of the employeebecoming aware of any breach of representation that the union may havecommitted. 16 Furthermore, some federal courts have expanded the rationaleof DelCostello to a wide variety of claims based on federal policy argumentsand broad preemption of state law, leading to inconsistency in labor lawlimitations periods. Interests in federal labor law uniformity and rapidresolution of union arbitration do not justify this disparity and confusion;absent an act of Congress to create an express limitations period for § 301claims, the more equitable approach would give greater consideration to statelaws and the generous time periods that they usually provide. By retractingfrom this federal labor common law approach, the Judiciary would return tothe preferred practice of borrowing state statutes of limitations, give plaintiff-employees a break in federal court, and satisfy to a fuller extent the intereststhat the DelCostello Court sought to serve in the first place.

Part II of this Note provides a brief overview of the federal courts'practice of applying state statutes of limitations to causes of action for whichCongress has failed to provide an express limitations period, as well as theexception to that practice as set forth in DelCostello. An analysis of thecircuit courts' application of the DelCostello exception follows in Part III,focusing on the trends developed in the Sixth Circuit over the past twentyyears. Part IV argues how a retreat from the expansion of the federalcommon law as seen in the DelCostello exception provides a betteralternative for federal labor litigation, and Part V concludes.

15 See Joshua H. Grabar, Labor Law-Antol v. Esposto: The Third Circuit Expands

Preemption Under the Labor Management Relations Act, 42 VILL. L. REv. 1995, 1997-98 (1997) (recognizing that § 301 actions are "advantageous for many employerdefendants because they place mandatory satisfaction of certain procedural burdens onaggrieved plaintiffs," and are often "quashed during the first round of dispositivemotions"); Christopher P. Yates, Cutting the Gordian Knot: A Principled Response toRemoval of State Law Claims to Federal Court Based on Section 301 Preemption, 6

COOLEY L. REv. 483, 483-84 (1989) (recognizing the "distinct advantage" an employerhas in § 301 claims due to procedural safeguards).

16 See Ryan v. Gen. Motors Corp., 929 F.2d 1105, 1111 (6th Cir. 1989) (holding that

a hybrid § 301 action accrues within six months from the date on which the plaintiffknew or should have known of the union's breach of its duty of fair representation).

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II. CONGRESSIONAL SILENCE AND STATUTE OF LIMITATIONS

BORROWING

A. The Traditional Practice

The issue at the core of DelCostello is a surprisingly common occurrencein federal law: congressional silence with respect to the statute of limitationsto apply to a cause of action arising under federal legislation.17 This problemhas appeared with many notable pieces of federal legislation, including theCivil Rights Act of 1871, the Securities Exchange Act of 1934, and theWorker Adjustment and Retraining Notification Act of 1988.18 Thetraditional answer the federal courts have applied to this problem has been toapply the statute of limitations of the most analogous state law to the federalcause of action. 19 Judges and commentators across a broad spectrum ofjudicial ideologies generally accept this norm;20 however, the reason andjustification behind this traditional practice depends upon whom you ask.

In his dissent in DelCostello, Justice Stevens offered one view: that thefederal Judiciary is bound to borrow state statutes of limitations bycongressional mandate. 21 This argument maintains that the Rules of DecisionAct requires federal judges to apply state law whenever federal law is silent:"The laws of the several states, except where the Constitution or treaties ofthe United States or Acts of Congress otherwise require or provide, shall beregarded as rules of decision in civil actions in the courts of the UnitedStates, in cases where they apply."22 Thus, borrowing state limitationsperiods is not merely a convenient practice, but a required one unless

17 See Abner J. Mikva & James E. Pfander, On the Meaning of Congressional

Silence: Using Federal Common Law To Fill the Gap in Congress's Residual Statute ofLimitations, 107 YALE L.J. 393, 393 (1997). In the early 1990s, Congress attempted tosolve the statutory gap-filling process by enacting comprehensive fallback statutes oflimitations for all federal causes of action. See id. at 394-95. However, the resultinglegislation failed to address the problem in any meaningful way since it contains noretroactive provision. See id.; 28 U.S.C. § 1658 (2006). Thus, LMRA § 301 claims, aswell as many other federal causes of action, have no express statute of limitations.

18 Mikva & Pfander, supra note 17, at 393-94.

19 Id. at 394.20 See id. at 408-09 (noting that "Justices across the spectrum of views on issues of

federal common law and judicial gap-filling" generally accept the mandate to gap-fillfederal legislation with non-congressional material, usually analogous state lawlimitations periods).

21 DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 172-74 (1983) (Stevens, J.,dissenting) ("For the past century federal judges have 'borrowed' state statutes oflimitations, not because they thought it was a sensible form of 'interstitial law making,'but rather because they were directed to do so by the Congress of the United States.").

22 28 U.S.C. § 1652 (2006).

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Congress expressly provides a time period within the cause of action that itcreates.

23

Justice Scalia offered an alternative rationale in his concurrence inAgency Holding Corp. v. Malley-Duff & Associates, Inc.24 Justice Scalia'sargument outlines a two-phase history of state law borrowing. In the firstphase, federal courts used state statutes of limitations not by borrowing them;rather, the federal courts believed that the state statutes applied on their ownforce unless specifically preempted by federal authority. 25 In the secondphase, the federal courts shifted their focus from the inherent power of thestate statute to the intention of Congress in drafting the federal statute. 26 Thecourts thus viewed congressional silence not as a failure to preempt state law,but as an "affirmative directive to borrow state law." 27 According to JusticeScalia, this shift of focus from presumed state authority to congressionalintent was erroneous;28 in his view, federal court statute "borrowing" shouldreflect deference to the states, and not resemble an activist court "prowlinghungrily" through legislation in order to "pounc[e]" on the limitations periodit thinks best effectuates the federal cause of action.29

Former D.C. Circuit Judge Abner Mikva and Professor James Pfanderoffer a theory on the justification of state law borrowing that is much lessbinding than Justice Stevens's, and much more pragmatic than JusticeScalia's. Mikva and Pfander suggest that early Supreme Courts gap-filled

23 See DelCostello, 462 U.S. at 174 (Stevens, J., dissenting) ("Congress has given us

no reason to depart from our settled practice, grounded in the Rules of Decision Act, ofborrowing analogous state statutes of limitation in cases such as this."). The DelCostellomajority, while disagreeing with Justice Stevens's reasoning, nonetheless agreed that thenormal outcome in these cases would be the application of state limitations periods. Seeid. at 171 (majority opinion) ("[A]s the courts have often discovered, there is not alwaysan obvious state-law choice for application to a given federal cause of action; yet resort tostate law remains the norm for borrowing of limitations periods."). For a discussion onhow the Rules of Decision Act prohibits federal common law-making, see generallyRedish, supra note 4.

24 483 U.S. 143, 157 (1987) (Scalia, J., concurring). In Agency Holding Corp., theCourt-utilizing and extending the DelCostello rationale-applied the Clayton Act'sfour-year statute of limitations to civil RICO claims. Id. at 156 (majority opinion).

25 Id. at 158 (Scalia, J., concurring).2 6 Id.

27 Id.2 8 Id. at 158-59.

29 Id. at 166. In Justice Scalia's view, the borrowing path the majority took in

DelCostello and Agency Holding Corp. was a "giant leap into the realm of legislativejudgments." Id. at 157.

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federal statutes with state limitations out of "sheer necessity. '30 For example,the Court in Campbell v. Haverhill reasoned that the absence of a statute oflimitations in congressional patent infringement law was "utterly repugnantto the genius of our laws;" 3 1 thus, it simply applied a state limitations periodof identical length to a patent law Congress had recently enacted. 32

According to Mikva and Pfander, the Campbell Court rejected the theory thatthe state law applied through its own authority and instead justified itsdecision by stating that Congress, through the Rules of Decision Act,directed federal courts to gap-fill federal statutes using state law.3 3 Mikvaand Pfander contend that the Campbell Court did not view this gap-filling asmandatory; rather, it believed courts could look outside the realm of state lawif the statute of limitations was impractical for enforcement of the federallaw.34 Thus, the key to statute of limitations selection was flexibility, not acongressional mandate or the presumed authority of state law in the absenceof federal preemption.3 5

Regardless of the justification, it has indisputably been the traditionalpractice of federal courts to look to analogous state statutes of limitationswhenever Congress is silent with respect to the limitations period of a federalcause of action. 36 Section 301 claims under the LMRA37 against employersfor breach of collective bargaining agreements are no exception. Section 301

30 See Mikva & Pfander, supra note 17, at 409-11. Mikva and Pfander argue that

despite its reaffirmation in recent Supreme Court cases, "the rule of primary reliance onstate law rests on relatively weak foundations." Id. at 409.

31 155 U.S. 610, 616-17 (1895).32 Mikva & Pfander, supra note 17, at 409-10.33 Id. at 410.34 Id. at 410-1.35 See id. at 411. According to Mikva and Pfander, "state limitations periods apply

to federal claims, not of their own force and not by virtue of the Rules of Decision Act,but only by virtue of their 'implied absorption .. . within the interstices of the federalenactments' through the process of fashioning federal common law." Id. (quotingHolmberg v. Armbrecht, 327 U.S. 392, 395 (1946)). Thus, "the Court remains free toborrow a federal limitations period in appropriate cases," even though it has "largelyfailed to justify its continuing adherence to a rule of primary reliance on state law." Id.

36 See id. at 394 ("Under the standard learning, federal courts supply omitted time

limits by borrowing the most analogous statute of limitations from state law."); see alsoDelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158-59 (1983).

37 Pub. L. No. 80-101, 61 Stat. 136 (1947). Also known as the Tafi-Hartley Act, theLMRA's declared purpose was "[t]o amend the National Labor Relations Act, to provideadditional facilities for the mediation of labor disputes affecting commerce, to equalizelegal responsibilities of labor organizations and employers, and for other purposes." Id. Inreality, the effect of the LMRA "was to impose responsibilities and regulations uponunions as well as employers, since the 1935 Wagner Act had fashioned restrictions onlyfor employers." GOULD, supra note 5, at 48-49.

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of the LMRA creates a cause of action for "violation[s] of contracts betweenan employer and a labor organization representing employees." 38 While thelanguage of the cause of action suggests that § 301 plaintiffs must be partiesto the collective bargaining agreement (either the employer or the union), theSupreme Court has rejected this reading,39 thereby permitting an individualemployee to bring a § 301 suit as a third-party beneficiary to the collectivebargaining agreement.40

Courts have consistently found that, standing alone, a § 301 claimbrought by either a union or an individual employee is most analogous tostate actions for breach of contract because it essentially depends oninterpretation of the terms of the collective bargaining agreement inquestion.4' However, § 301 claims against employers are often joined with

38 Section 301 of the LMRA provides:

Suits for violation of contracts between an employer and a labor organizationrepresenting employees in an industry affecting commerce as defined in this chapter,or between any such labor organizations, may be brought in any district court of theUnited States having jurisdiction of the parties, without respect to the amount incontroversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a) (2006).39 See Smith v. Evening News Ass'n, 371 U.S. 195, 200 (1962) ("The concept that

all suits to vindicate individual employee rights arising from a collective bargainingcontract should be excluded from the coverage of § 301 has thus not survived. The rightsof individual employees concerning rates of pay and conditions of employment are amajor focus of the negotiation and administration of collective bargaining contracts.Individual claims lie at the heart of the grievance and arbitration machinery .... Toexclude these claims from the ambit of § 301 would stultify the congressional policy ofhaving the administration of collective bargaining contracts accomplished under auniform body of federal substantive law.").

40 See Anderson v. AT&T Corp., 147 F.3d 467, 473 (6th Cir. 1998) ("[W]e have

long recognized that the plaintiff can recover for the employer's breach of a collectivebargaining agreement if the plaintiff is a third-party beneficiary of the agreement.").

41 See UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 708 (1966) (applying

Indiana's six-year statute of limitations for unwritten contracts to a § 301 claim); see,e.g., Anderson, 147 F.3d. at 474 (applying Ohio's statute of limitations for breach ofcontract to plaintiff's § 301 claim); Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210,1216 (6th Cir. 1987) (applying Ohio's statute of limitations for breach of contract toplaintiff's § 301 claim); Cent. States Se. and Sw. Areas Pension Fund v. Kraftco, 799F.2d 1098, 1107-08 (6th Cir. 1986) (applying Tennessee's statute of limitations forbreach of contract to plaintiffs § 301 claim); Int'l Ass'n of Machinists v. Allied Prod.Corp., 786 F.2d 1561, 1563 (1 1th Cir. 1986) (noting that when a § 301 claim resembles abreach of contract suit, the applicable state contract statute of limitations will be applied);Smith v. Kerrville Bus Co., 748 F.2d 1049, 1054-55 (5th Cir. 1984) (finding theplaintiff's § 301 suit analogous to breach of contract, and insulated from the DelCostellohybrid exception); O'Hare v. Gen. Marine Transp. Corp., 740 F.2d 160, 167-68 (2d Cir.

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breach of the duty of fair representation 42 claims against the unionrepresenting the employee in the collective bargaining agreement that is thesubject of the § 301 lawsuit.4 3 In many cases, the collective bargainingagreement will require that an employee exhaust all remedies-typically

1984) (holding that a "traditional section 301 breach of contract action" was governed byNew York statute of limitations).

42 The basis for a union's duty of fair representation is two-fold. First, Supreme

Court decisions interpreting early labor legislation found an implicit obligation upon theunion to represent its employees in good faith. See e.g., Ford Motor Co. v. Huffman, 345U.S. 330, 338 (1953) (observing that a union's duty of representation is "subject alwaysto complete good faith and honesty of purpose in the exercise of its discretion"); Steele v.Louisville & Nashville R.R., 323 U.S. 192, 202 (1944) (holding that the Railway LaborAct "imposes upon the statutory representative of a craft at least as exacting a duty toprotect equally the interests of the members of the craft as the Constitution imposes upona legislature to give equal protection to the interests of those for whom it legislates.").Second, the National Labor Relations Board has interpreted the exclusivity provision ofNLRA § 9(a) to impose a duty of fair representation upon majority-representative unions,the breach of which constitutes an unfair labor practice under NLRA §§ 8(b)(1)(A) and8(b)(2). See Miranda Fuel Co., 140 N.L.R.B. 181, 185-86 (1962) (finding a § 8(b)(1)(A)violation when a union "tak[es] action against any employee upon considerations orclassifications which are irrelevant, invidious, or unfair," and finding a § 8(b)(2) violationwhen, "for arbitrary or irrelevant reasons or upon the basis of an unfair classification, theunion attempts to cause or does cause an employer to derogate the employment status ofan employee").

43 See Anderson, 147 F.3d at 473 ("[t]he most common kind of Section 301 case isthe so-called 'hybrid' case, in which employees sue both their union, for breach of theduty of fair representation, and their employer, for breach of a collective bargainingagreement."). The Supreme Court first recognized the factual scenario under which anindividual employee's § 301 breach of contract claim against his employer wouldintersect with a breach of duty of representation claim against his union in Vaca v. Sipes:

We think that another situation when the employee may seek judicialenforcement of his contractual rights arises if, as is true here, the union has solepower under the contract to invoke the higher stages of the grievance procedure, andif, as is alleged here, the plaintiff-employee has been prevented from exhausting hiscontractual remedies by the union's wrongful refusal to process the grievance. It istrue that the employer in such a situation may have done nothing to preventexhaustion of the exclusive contractual remedies to which he agreed in the collectivebargaining agreement. But the employer has committed a wrongful discharge inbreach of that agreement, a breach which could be remedied through the grievanceprocess to the plaintiff-employee's benefit were it not for the union's breach of itsstatutory duty of fair representation to the employee. To leave the employeeremediless in such circ*mstances would, in our opinion, be a great injustice.

386 U.S. 171, 185-86 (1967). The critical effect of Vaca was to insulate these types ofclaims from Garmon preemption-i.e., from being removed from the courts' jurisdictionto NLRB adjudication. Id. at 187. For further discussion on the role of Garmonpreemption, see ALVIN L. GOLDMAN, THE SUPREME COURT AND LABOR-MANAGEMENTRELATIONS LAW 62-69 (1976); see also infra note 121.

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consisting of arbitration--contained within the agreement itself before filinga lawsuit against the employer.44 Thus, after exhaustion of the collectivebargaining procedure, an employee with an unresolved claim against hisemployer will have a new claim against the union that failed to adequatelyrepresent his or her interests. 45 The DelCostello Court was tasked tocharacterize this type of lawsuit and determine the applicable statute oflimitations.

B. DelCostello and the Hybrid Exception

In DelCostello v. International Brotherhood of Teamsters,46 the Courtconsidered what statute of limitations to apply when an employee brought anaction against both his employer and his union.47 Philip DelCostello, a driveremployed by Anchor Motor Freight, Inc., and represented by TeamstersLocal 557, refused to operate a tractor trailer that he felt was unsafe. 48

DelCostello claimed that Anchor fired him over this dispute, and hesubsequently filed a complaint with the union, which in turn filed a formalgrievance pursuant to the collective bargaining agreement.49 The regionaljoint union-management committee determined DelCostello's claim waswithout merit, a decision binding on all parties under the collectivebargaining agreement. 50 DelCostello filed suit against both Anchor and theTeamsters in the federal District Court of Maryland, claiming that hisemployer had discharged him in violation of the collective bargainingagreement, and that the union had represented him in a "discriminatory,arbitrary, and perfunctory manner" during the grievance procedure.51

44 See Grabar, supra note 15, at 1997; see also Yates, supra note 15, at 483.45 See Vaca, 386 U.S. at 186 (holding that when collective bargaining agreement

requires exhaustion of arbitration remedies, "the wrongfully discharged employee may

bring an action against his employer in the face of a defense based upon the failure toexhaust contractual remedies, provided the employee can prove that the union as abargaining agent breached its duty of fair representation in its handling of the employee'sgrievance"); see also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571 (1976)(extending Vaca to hold that the finality provision of a collective bargaining agreementcannot be enforced in favor of the employer unless the union has satisfied its duty of fairrepresentation).

46 462 U.S. 151 (1983).4 7 Id. at 154.48 Id. at 155. Before the Supreme Court, DelCostello's claim was joined with similar

claims brought by Donald Flowers and King Jones, welders employed by BethlehemSteel Corp. and represented by Steelworkers Local 2602. Id. at 156.

4 9 1d. at 155.50 Id.51 DelCostello, 462 U.S. at 155-56.

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Initially, the district court held that DelCostello's claim was subject toMaryland's three-year statute of limitations for actions on contracts;however, on reconsideration following the Supreme Court's decision inUnited Parcel Service, Inc., v. Mitchell,52 the court held that Maryland'sthirty-day statute of limitations for actions to vacate arbitration awardsapplied, thus barring the lawsuit.53 After the Fourth Circuit affirmed, theSupreme Court granted certiorari in order to address two questions leftunanswered in Mitchell: first, what statute of limitations should be applied tothe claim against the union; and second, whether a federal statute oflimitations should be borrowed for the action.54 Specifically, the Courtaddressed DelCostello's argument that his claim against both his employerand the union should be governed by the six-month statute of limitations of§ 10(b) of the National Labor Relations Act (NLRA). 55 In arriving at itsconclusion that the NLRA limit did apply, the Court cleared two analyticalhurdles: first, it justified its departure from the normal practice of borrowingstate statutes of limitations; second, it justified its choice of the federallimitation period over several state statutes.56

The Court, speaking through Justice Brennan, conceded that whenfederal statutes are silent with respect to the statute of limitations, "Congressintended that the courts apply the most closely analogous statute oflimitations under state law." 57 However, the Court asserted that under specialcirc*mstances, borrowing a state statute of limitations could be an"unsatisfactory vehicle for the enforcement of federal law."58 In these

52 451 U.S. 56, 64 (1981) (holding that a lawsuit against an employer for breach of a

collective bargaining agreement arising out of a grievance proceeding should begoverned by a state statute of limitations for vacation of an arbitration award, rather thana state statute of limitations for actions on contract).

13 DelCostello, 462 U.S. at 156.54 Id. at 154. The Mitchell Court did not address these questions because only the

employer, and not the union, had filed a petition for certiorari; therefore, the onlyquestion presented was which state statute of limitations should apply to the claim againstthe employer. Id. at 154 nn.1-2; Mitchell, 451 U.S. at 60.

55 DelCostello, 462 U.S. at 158. Section 10(b) of the NLRA provides: "[N]ocomplaint shall issue based upon any unfair labor practice occurring more than sixmonths prior to the filing of the charge with the Board and the service of a copy thereofupon the person against whom such charge is made ... " 29 U.S.C. § 160(b) (2006).

56 See DelCostello, 462 U.S. at 158-63, 169-70.57 Id. at 158.58 Id. at 161. The Court referenced three cases in which it considered a state

limitations period inappropriate for a federal cause of action: Occidental Life Ins. Co. v.EEOC, 432 U.S. 355, 367 (1977) (declining to apply state limitations periods to Title VIIenforcement suits); McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224 (1958)(applying a federal statute of limitations over a state personal injury time period to aseaworthiness action under general admiralty law); and Holmberg v. Armbrecht, 327 U.S.

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situations, applying the state time limit would be "at odds with the purpose oroperation of federal substantive law," and may "frustrate or interfere with theimplementation of national policies. '59 Thus, if application of a statelimitation period did not promote "those consensual processes that federallabor law is chiefly designed to promote," the Court was prepared to breakfrom the general practice of borrowing state rules and find a more analogousstatute of limitations in federal law.60

In a lengthy footnote, the Court dismissed the respondent's and JusticeStevens's argument that the Rules of Decision Act6' and the Erie doctrinecompelled the use of a state statute of limitations. 62 The Court regarded theRules of Decision Act as inapplicable because it was itself silent with respectto federal causes of action; thus the question of which statute of limitations toapply to a federal cause of action was a federal question.63 Accordingly,because "interstitial federal lawmaking is a basic responsibility of the federalcourts," the Court determined it was competent to gap-fill the statute oflimitations it felt best satisfied the purpose of the federal cause of action.64

The Court found confirmation of this principle in the Erie doctrine, since thatcase recognized that "the purpose of the [Rules of Decision Act] was merelyto make certain that, in all matters except those in which some federal law iscontrolling, the federal courts exercising jurisdiction in diversity cases wouldapply as their rules of decision the law of the State, unwritten as well aswritten."65 Thus, the practice of applying state limitation periods to federalcauses of action was not mandated by the Rules of Decision Act nor the Erie

392, 396 (1946) (holding that state statutes of limitations would not apply to a federalcause of action lying solely in equity).

59 DelCostello, 462 U.S. at 161. (quoting Occidental Life Ins. Co., 432 U.S. at 367).For example, the Court noted that in Occidental the state statute was passed by because it"might unduly hinder the policy of [Title VII] by placing too great an administrativeburden on the agency." Id. at 162.

60 See id at 163 (quoting UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 702

(1966)).61 "The laws of the several states, except where the Constitution or the treaties of the

United States or Acts of Congress otherwise require or provide, shall be regarded as rulesof decision in civil actions in the courts of the United States, in cases where they apply."28 U.S.C. § 1652 (2006).

62 See DelCostello, 462 U.S. at 172-74 (Stevens, J., dissenting) ("Congress hasgiven us no reason to depart from our settled practice, grounded in the Rules of DecisionAct, of borrowing analogous state statutes of limitation in cases such as this."); see alsosupra notes 21-23 and accompanying text.

63 DelCostello, 462 U.S. at 159 n.13 (citing UAW v. Hoosier Cardinal Corp., 383U.S. 696, 701 (1996)).

64 Id. at 159-60 & n.13 (quoting United States v. Little Lake Misere Land Co., 412U.S. 580, 593 (1973)).

65 Id. at 160 n.13 (quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-73 (1938)).

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doctrine, but instead was a way to "fashion[] ... remedial details under therespective substantive federal statutes. '66

Unbound by analogous state statutes of limitations, the Court proceededto evaluate a number of time periods under state and federal law in order todetermine which best applied to DelCostello's cause of action. First, theCourt distinguished DelCostello's claim from a "straightforward breach-of-contract suit" under the Labor Management Relations Act, since he had alsobrought a claim against the union for breach of the duty of fairrepresentation. 67 Citing Vaca and Hines, the Court regarded the two claimsas formally distinct yet "inextricably interdependent," and characterized themas consisting of a single "hybrid" claim challenging the entire grievanceprocess mandated by the collective bargaining agreement. 68 In light of the''practical application in view of the policies of federal labor law and thepracticalities of hybrid § 301-fair representation litigation," the Courtconstrued the claim before it as substantively unique, with "no close analogyin ordinary state law."69

Second, the Court addressed several potential analogous state causes ofaction. The Court reaffirmed its prior determination in Mitchell that an actionto vacate an arbitration award was more analogous than an action for breachof contract; however, this option was "imperfect" because of dissimilaritiesbetween a labor grievance process and commercial arbitration.70 Moreover,the Court determined that state arbitration limits were relatively short (ninetydays), and "fail[ed] to provide an aggrieved employee with a satisfactoryopportunity to vindicate his rights" under federal labor doctrine. 71 The Courtnext considered Justice Stevens's suggestion that a state legal malpracticestatute of limitations be applied, the analogy being a cause of action against a

66 Id. (citing Holmberg v. Armbrecht, 327 U.S. 392, 394-95 (1946)).67 Id. at 164-65.68 Id. The Court noted that Vaca and Hines provided that "when the union

representing the employee in the grievance/arbitration procedure acts in such adiscriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fairrepresentation ... an employee may bring suit against both the employer and the union,notwithstanding the outcome or finality of the grievance or arbitration proceeding." Id. at164 (citing Bowen v. U.S. Postal Serv., 459 U.S. 212 (1983); United Parcel Serv., Inc. v.Mitchell, 451 U.S. 56 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976);Czosek v. O'Mara, 397 U.S. 25 (1970); Vaca v. Sipes, 386 U.S. 171 (1967)).

69 DelCostello, 462 U.S. at 165.70Id. at 165-66. The Court noted that in commercial arbitration, the party will

normally be represented by counsel or have some experience in negations, while in labordisputes, the employee is often "unsophisticated" with respect to the collective bargainingprocess and will be completely reliant on the union. Id.

71 Id. at 166.

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lawyer (here, the union) who mishandles commercial arbitration. 72 While thisoption was considered a closer analogy, the Court rejected it as well becausethe period would be too long (three years and beyond), and would thereforejeopardize the interest in rapid resolutions of labor disputes favored byfederal law.73

While prepared to tolerate these "objections" in another context, theCourt found a convenient answer in federal labor legislation: specifically, thesix-month period for unfair labor practice charges under § 10(b) of theNLRA.74 The basis for the analogy here was that the National LaborRelations Board had consistently held all breaches of a union's duty of fairrepresentation as unfair labor practices. 75 Moreover, the Court reasoned thatCongress balanced the same personal rights and national considerations informulating § 10(b) that were at issue in DelCostello's suit: finality inemployee settlements and stability in collective bargaining.76 With theseinterests in mind, the Court found a "need for uniformity" in the adjudicationof hybrid claims, a need addressed with "clear congressional indication"through § 10(b) of the NLRA. 77

Although the DelCostello Court was quick to limit the breadth of itsdeparture from the practice of borrowing state statutes of limitations, 78 it had

72 Id. at 167.73 Id. at 168. In support of this point, the Court quoted Mitchell with approval: "This

system, with its heavy emphasis on grievance, arbitration, and the 'law of the shop,'could easily become unworkable if a decision which has given 'meaning and content' tothe terms of an agreement, and even affected subsequent modifications of the agreement,could suddenly be called into question as much as [three] years later." Id. at 169 (quotingMitchell, 451 U.S. at 63-64).

74 Id. at 169 ("These objections to the resort to state law might have to be tolerated ifstate law were the only source reasonably available for borrowing, as it often is. In thiscase, however, we have available a federal statute of limitations actually designed toaccommodate a balance of interests very similar to that at stake here-a statute that is, infact, an analogy to the present lawsuit more apt than any of the suggested state-lawparallels.")

75 DelCostello, 462 U.S. at 170; see also supra note 42.76 DelCostello, 462 U.S. at 170-71 (quoting Mitchell, 451 U.S. at 70-71 (Stewart,

J., concurring in the judgment)).77 Id. at 171. This rationale follows a trend in labor law which subordinates the

interests of individual employees in favor of systemic interests in collective bargaining.See supra Part IV.A.

78 DelCostello, 462 U.S. at 171 ("We stress that our holding today should not betaken as a departure from prior practice in borrowing limitations periods for federalcauses of action, in labor law or elsewhere. We do not mean to suggest that federal courtsshould eschew use of state limitations periods anytime state law fails to provide a perfectanalogy."). The Court has also specifically limited the reach of DelCostello in subsequentcases. In Reed v. United Transportation Union, the Court held that an employee's

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an immediate impact by judicially creating a new statute of limitations for ajudicially formed cause of action: the hybrid § 301-breach of fairrepresentation claim.79 While the Court could be criticized for "prowlinghungrily" through federal law to find a statute of limitations it felt was fairfor the hybrid claim,80 it nonetheless succeeded in creating a new limitationsperiod that became so entrenched in federal labor law that it was initiallyreserved for exclusion in Congress's attempt to provide uniform statutes oflimitations for silent causes of action during the early 1990s.81 However, thetrue practicality of the new limitations period would be tested outside ofWashington, in labor litigation throughout the federal courts.

freedom of speech claim against his union under § 101(a)(2) of the Labor-ManagementReporting and Disclosure Act (LMRDA) was governed by a three-year state limitationsperiod for personal injury actions, and not § 10(b) of the NLRA. 488 U.S. 319, 323(1989). While the LMRDA claim implicated the interests espoused in DelCostello-finality in employee settlements and stability in collective bargaining-on a mere"tangential and remote" basis, id. at 330, it was directly modeled on the FirstAmendment's guarantee of free speech. Id. at 334. Therefore, the most closely analogousfederal statute to the LMRDA claim was 42 U.S.C. § 1983-providing protection ofindividual rights against state action-which, as the Court noted, was governed by stategeneral or residual personal injury statute of limitations. Id. (citing Owens v. Okure, 488U.S. 235 (1989)). In North Star Steel Co. v. Thomas, the Court held that an actionbrought by a union and union members under the Worker Adjustment and RetrainingNotification Act (WARN) was governed by state limitations periods ranging from two tosix years. 515 U.S. 29, 35-36 (1995). The Court distinguished DelCostello by noting thatin that case the available state limitations periods "'typically provide[d] very short times'and thus 'fail[ed] to provide an aggrieved employee with a satisfactory opportunity tovindicate his rights."' Id. at 36 (quoting DelCostello, 462 U.S. at 166 & n.15). In contrast,the state periods analogous to WARN were "not short enough to frustrate an employeeseeking relief." Id.

79 See Mikva & Pfander, supra note 17, at 402 (describing § 301 hybrid claims as"the judge-made claims that disappointed grievants bring to challenge the results of theunion-management arbitration systems in place under many collective bargainingagreements").

80 See Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143, 166-70

(Scalia, J., dissenting) (criticizing the majority's use of the Clayton Act to gap-fill thestatute of limitations for RICO civil enforcement actions).

81 See Mikva & Pfander, supra note 17, at 402 (noting that during the congressional

attempt to set uniform statutes of limitation for federal causes of action under 28 U.S.C.§ 1658, a "House Report included the six-month period established in DelCostello on itslist of the limitations periods that its prospective approach to § 1658 would not affect").

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III. APPLICATION OF DELCOSTELLO IN LABOR LITIGATION IN THE

FEDERAL COURTS

As discussed above, DelCostello created a new hybrid cause of actionwith a set six-month statute of limitations.82 Presumably, any litigantbringing a cause of action against his or her employer for breach of acollective bargaining agreement along with a cause of action against his orher union for breach of its duty of fair representation would be required tobring the action within the six-month time period. While the DelCostelloCourt may have intended this limitations period to be a fair balancing ofnational labor interests, 83 it has had at least two unforeseen consequences inlitigation. First, a sharp disparity exists between straightforward § 301claims-generally subject to a lengthy state contract law statute oflimitations-and hybrid actions barred six months after accrual. Simplybecause an employee is subject to a union arbitration or grievance proceeding(that fails to resolve the employee's complaint), the DelCostello doctrineseverely cuts the amount of time he or she has to file a lawsuit in federalcourt. Second, under the doctrine of § 301 preemption, 84 employee causes ofaction arising under state law have been precluded by the federal statute oflimitations, when the state limitations period would have allowed the actionto proceed. As a result of these practical consequences, the statute oflimitations fashioned by the Court as a labor interest balancing compromisehas instead become a tool for employer-litigants seeking to dismiss a varietyof claims invoked against them.

A. Trends in the Sixth Circuit

An examination of several Sixth Circuit cases in particular reveals theevolution of the hybrid claims in federal labor litigation, and how thisphenomenon has affected actual employee, employer, and union litigants. 85

82 See id. (referring to hybrid claims as "judge-made" actions).

83 See DelCostello, 462 U.S. at 171 (citing United Parcel Serv., Inc. v. Mitchell, 451

U.S. 56, 70-71 (1981), for the proposition that the NLRA statute of limitations reflectsthe "proper balance between the national interests in stable bargaining relationships andfinality of private settlements, and an employee's interest in setting aside what he viewsas an unjust settlement under the collective bargaining system").

84 See infra note 121.85 The Sixth Circuit-encompassing the Rust Belt states of Ohio, Michigan, and

Indiana-has produced a large volume of § 301 hybrid cases over the past twenty years,making it a prime candidate for the purpose of identifying trends in the application ofDelCostello. Shepardizing the DelCostello opinion on LexisNexis reveals that federalcourts in the Sixth Circuit have cited DelCostello 643 times, more than any other federalcircuit. See generally STEVEN HENRY LOPEZ, REORGANIZING THE RUST BELT: AN INSIDE

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As shown below, over the past twenty years the Sixth Circuit has bothlimited and expanded the claims reached by DelCostello's analysis, thuscreating inconsistency in the treatment of limitations periods in laborlitigation.

1. Limiting the Reach of DelCostello in the Sixth Circuit

One of the earliest Sixth Circuit cases following the DelCostello decisionclearly established that the six-month statute of limitations should be limitedto the facts establishing a hybrid § 301 cause of action as outlined by theSupreme Court. Central States Southeast and Southwest Area Pension Fundv. Kraftco Inc. was a complex lawsuit initially brought by a pension fundagainst an employer, Kraftco, alleging failure to make payments to the fundas required by a collective bargaining agreement with Teamsters LocalUnion 327.86 Kraftco then filed its own lawsuit alleging that the unionviolated the terms of agreements formed through letters outside of thecollective bargaining agreement, and the two cases were consolidated. 87 Thepension fund's action consisted of three distinct claims: (1) breach of trustunder federal ERISA law; (2) breach of collective bargaining agreementunder § 301 of the LMRA; and (3) breach of trust agreement under statelaw.88 The circuit court was thus tasked to determine the applicable statute oflimitations for each cause of action.89

With respect to the ERISA claim, Kraftco argued that DelCostellocompelled application of the six-month NLRA statute of limitations, becausethe claim was "an attack on the negotiating process akin to an action forbreach of the duty of fair representation." 90 The court rejected this argumentand applied the six-year statute of limitations for breach of contract underTennessee law.91 The court recognized that DelCostello was not a "greenlight" to apply the six-month statute of limitations to "all actions in whichfederal labor law is implicated. '92 Because the pension fund's ERISA claim"relate[d] solely to the employer's failure to comply with the terms of the

STUDY OF THE AMERICAN LABOR MOVEMENT (2004) (discussing and challenging trendsof the labor movement in the Rust Belt region).

86 799 F.2d 1098, 1100 (6th Cir. 1986).87 Id.88 Id. at 1104.

89 Id.9 0 Id. at 1105.

91 Id. at 1106-07.92 Kraftco, 799 F.2d at 1107 (citations omitted).

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collective bargaining agreement," the court found state contract law as themost analogous statute of limitations. 93

Likewise, the court applied the Tennessee six-year statute of limitationsto the pension fund's § 301 breach of contract claim.94 The court recognizedthat it had previously applied state contract limitation periods to § 301actions, and noted that the practice was followed by other circuits as well. 95

Essentially, the Sixth Circuit stated that a § 301 breach of collectivebargaining agreement action, standing on its own, would continue to begoverned by the applicable state contract statute of limitations, 96 which ingeneral will be much longer than the six months allowed under the NLRA. 97

Another piece of complex litigation in the Sixth Circuit confirmed thisprinciple over a decade later. In Anderson v. AT&T Corp., the plaintiff-employees lost certain benefits obtained in collective bargaining when theywere transferred from plants in North Carolina, Arizona, and Missouri toColumbus, Ohio.98 After unsuccessful attempts to receive assistance fromtwo different unions-Communications Workers of America (CWA) andInternational Brotherhood of Electrical Workers (IBEW)-the employeesbrought a § 301 action against AT&T.99 CWA was subsequently joined as aninvoluntary plaintiff, and IBEW was joined as an involuntary defendant. 100

AT&T argued that the employees' § 301 claim was barred by the six-month statute of limitations under DelCostello.101 The court rejected thisargument, noting that the DelCostello Court "took great pains to make clearthat there is no generally applicable limitations period for Section 301claims; instead, the appropriate limitations period depends on the particularclaims raised in the case." 10 2 As opposed to setting a firm time limit for§ 301 actions, the court summarized the DelCostello Court's reasoning as

93 Id. at 1106.9 4 1d. at 1107-08.

95 Id. at 1108 (citing Int'l Assoc. of Machinists v. Allied Prod. Corp., 786 F.2d 1561,1563 (11th Cir. 1986); O'Hare v. Gen. Marine Trans. Corp., 740 F.2d 160, 167-68 (2dCir. 1984); Smith v. Kerrville Bus Co., 748 F.2d 1049, 1051 (5th Cir. 1984)).

96 Id.

97 See, e.g., KY. REV. STAT. ANN. § 413.090(2) (Lexis Nexis 2005) (fifteen years);MICH. COMP. LAWS § 600.5807(8) (2000) (six years); OHIO REV. CODE ANN. § 2305.06(West 2004) (fifteen years); TENN. CODE ANN. § 28-3-109 (2000) (six years).

98 147 F.3d 467, 471 (6th Cir. 1998).99 Id. As the employees' previous union, CWA could not assist them because it was

no longer their bargaining representative; as the employees' current union, IBEW couldnot bring a grievance to enforce a right created under an agreement to which it was not aparty. Id.

100 Id.101 Id. at 474.102 Id.

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"[c]oncluding that the 90-day state-law limitations provision was too shortgiven the facts of the case ... [and] it was appropriate to apply the longerlimitations period."'10 3 Thus, the court decided that the most analogous statuteof limitations to apply to the employees' § 301 claim was Ohio's fifteen-yearlimit on actions for breach of written contracts. 104

Anderson strikes an interesting contrast with DelCostello because eventhough multiple unions were parties to the litigation, and those unions'behavior in representing their employees' interests was a crucial factor in thecase, the court nonetheless held that the § 301 claim against AT&T was mostanalogous to breach of contract. 10 5 This treatment by the circuit courtundermines the notion that the addition of union grievance/arbitration issuesalone alters a § 301 claim so dramatically as to shift the analogous claimfrom breach of contract under state law, to an unfair labor practice under theNLRA. The union in DelCostello refused to process the employee'sgrievance, and the unions in Anderson were incapable to do so undercontractual obligation; yet, the circuit court considered Ohio's contractperiod to be the most applicable to the claim. Thus, unlike the plaintiffs inDelCostello, the plaintiff-employees here were able to avail themselves ofthe generous statutory period the state legislature had intended.

In a slightly different context, the Sixth Circuit found that an employee'sclaim that he was wrongfully expelled from his union was governed by aone-year state statute of limitations, and not the six-month period providedby the NLRA. 106 In Holmes v. Donovan, a plaintiff-employee brought anaction under § 101 (a)(5) of the Labor-Management Reporting and DisclosureAct (LMRDA), 10 7 alleging that he was expelled from his union withoutnotice or a hearing, as required by federal law.' 0 8 Similar to § 301 of theLMRA, the employee's LMRDA claim provided no limitations period.10 9

103 Id.

104 Anderson, 147 F.3d at 474; OHiO REv. CODE ANN. § 2305.06 (West 2004).105 Anderson, 147 F.3d at 474.106 Holmes v. Donovan, 984 F.2d 732, 738 (6th Cir. 1993). While the Sixth Circuit

limited the reach of DelCostello with respect to the plaintiff-employee discussed here, itexpanded its reach with respect to a different plaintiff-employee's LMRA § 302 claims.See infra notes 159-68 and accompanying text.

107 Section 101(a)(5) of the LMRDA provides that "[n]o member of any labororganization may be fined, suspended, expelled, or otherwise disciplined ... by such[labor] organization ... unless such member has been (A) served with written specificcharges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fairhearing." 29 U.S.C. § 411(a)(5) (2006).

108 Holmes, 984 F.2d at 734.109 Id.

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The district court, relying on DelCostello, applied the NLRA six-monthperiod to the claim and dismissed it as time-barred. 110

The Sixth Circuit reversed, finding that Tennessee's statute of limitationsfor personal injury actions was more closely analogous to the LMRDA claimthan § 10(b) of the NLRA.111 The court arrived at this conclusion throughtwo steps. First, relying on Reed v. United Transportation Union,1 12 the courtreasoned that § 101(a)(5) was designed to address the denial of unionmembers' individual rights.113 Because the LMRDA protected "fundamentalnotions of due process," the most analogous federal cause of action wasfound in 42 U.S.C. § 1983, protecting against the denial of individual rightsunder color of state law. 114 Second, the court noted that § 1983 claims were"governed by state general or residual statutes of limitations for personalinjury actions." 115 Thus, since § 101(a)(5) of the LMRDA protected similarinterests as § 1983, the court applied the relevant statute of limitations forstate personal injury actions: one year under Tennessee law. 116

Anderson and Holmes provide illustrative examples where strong unioninterests in grievance resolution and labor litigation were insufficient for theSixth Circuit to find them governed under the NLRA statute of limitations byvirtue of the federal labor common law. What justifies the return to standardstate limitations borrowing in cases like this, when the policy interests are sosimilar to those which the DelCostello Court used to justify a break awayfrom the traditional practice and look to federal law? Stated differently, howdoes a case such as Anderson-where two unions are incapable of assistingtheir constituent employees--differ so markedly from a case where the unionsimply fails to assist, that statutes of limitations differing by several orders ofmagnitude are justified? As will be shown below, a series of cases emergedin the Sixth Circuit which expanded the reach of the hybrid statute oflimitations, as well as suggested a mechanical application of the six-monthstatute of limitations in any § 301 claim. These cases do not resolve thequestion stated above, but they do have a dramatic practical impact on theplaintiff-employees who litigate them.

110 Id. at 737.

111 Id. at 738.112 The Supreme Court's limitation of DelCostello in Reed is discussed supra note

78.113 Holmes, 984 F.2d at 738.114 Id.; TENN. CODE ANN. § 28-3-104(a)(1) (2000).

115 Holmes, 984 F.2d at 737 (citing Reed v. United Transp. Union, 488 U.S. 319,

326 (1989); Owens v. Okure, 488 U.S. 235 (1989); Wilson v. Garcia, 471 U.S. 261(1985))

116Id. at 738.

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2. Expanding the Reach of DelCostello in the Sixth Circuit

In Fox v. Parker Hannifin Corp., the Sixth Circuit engaged in a dramaticexpansion of the DelCostello exception through the preemption of state-lawclaims. 117 Fox, the plaintiff-employee, had filed a series of informalcomplaints with both her employer and union over the course of severalyears, leading to her eventual discharge. 118 One year after her employerrefused to reinstate her and her union refused to take any further action onher behalf, Fox filed suit, claiming discharge in breach of the collectivebargaining agreement, breach of her union's duty of representation, and ahost of state law claims, including breach of contract, promissory estoppel,negligence, and fraud." 19

Pursuant to DelCostello, the circuit court combined the breach ofcollective bargaining agreement and breach of duty of representation claimsinto a hybrid § 301 action, and accordingly applied the six-month NLRAstatute of limitations. 120 However, the court did not stop there. Following theSupreme Court's recognition that § 301 is expansive in its coverage ofindividual collective bargaining workers' claims, the circuit court concludedthat § 301 preempted several of Fox's state law claims. 12 1 Accordingly, these

117 914 F.2d 795 (6th Cir. 1990).118 Id. at 798.

119 Id. at 798-99.120 Id. at 803.121 Id. at 799-803. The preemptive effect of § 301 is premised on the idea that the

LMRA "authorizes federal courts to fashion a body of federal law for the enforcement ofcollective bargaining agreements." Textile Workers v. Lincoln Mills, 353 U.S. 448, 451(1957). Thus, any state law claim brought by an employee that is "inextricablyintertwined with consideration of the terms of the labor contract" will be preempted by§ 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). Furthermore, § 301 isunique in that it falls into the category of "complete preemption." See HENDERSON, supranote 5, at 848. As the Supreme Court explained in Caterpillar Inc. v. Williams:

On occasion, the Court has concluded that the pre-emptive force of a statute is soextraordinary that it converts an ordinary state common-law complaint into onestating a federal claim for purposes of the well-pleaded complaint rule. Once an areaof state law has been completely pre-empted, any claim purportedly based on thatpre-empted state law is considered, from its inception, a federal claim, and thereforearises under federal law. The complete pre-emption corollary to the well-pleadedcomplaint rule is applied primarily in cases raising claims pre-empted by § 301 ofthe LMRA.

482 U.S. 386, 393 (1987) (citations omitted) (internal quotation marks omitted). Oncepreempted under § 301, the claim is removable to federal court. See Avco Corp. v. AeroLodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 560 (1968) ("It is thus clear thatthe [ § 301] claim under this collective bargaining agreement is one arising under the

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state law claims-breach of contract, promissory estoppel, negligence, andfraud-were absorbed into the hybrid claim, subject to the six-month statuteof limitations, and dismissed. 122 In so deciding, the court stated that inDelCostello "the Supreme Court conclusively established that section 301actions brought by individual employees are governed by the six-monthstatute of limitations borrowed" from the NLRA.123

Fox is a fascinating case because of its practical effect on the employee'slawsuit. Fox filed distinguishable federal and state lawsuits: a § 301 claim, abreach of duty of representation claim, and several other claims that had nobasis other than state law. However, through the twin doctrines of § 301preemption and the DelCostello hybrid exception, 124 the court dramaticallyreduced the limitations periods available to Fox: from fifteen, 125 six, 126 andfour 127 years to just six months. Though it justified its decision as adherenceto the Supreme Court's declaration of the need for uniformity in federal labor

'laws of the United States' within the meaning of the removal statute." (citationsomitted)).

The "complete preemption" doctrine of § 301 can be contrasted with other commonforms of labor law preemption. For example, under Garmon preemption, when a claimalleges conduct that "is arguably subject to § 7 or § 8 of the [NLRA], the States as well asthe federal courts must defer to the exclusive competence of the National Labor RelationsBoard." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Seegenerally GOLDMAN, supra note 43, at 62-69 (tracking the development of, andexceptions to, the Garmon doctrine).

Similar to the application of DelCostello, application of § 301 preemption in thecircuit courts has been "difficult and inconsistent." See Grabar, supra note 15, at 2011.Generally, the courts have found employees' state law claims to be preempted by § 301 ifeither the resolution of the claim requires interpretation of the collective bargainingagreement, or if the state-law right asserted by the claim is waivable under the collectivebargaining agreement. Stone, supra note 5, at 605-06. For additional discussion andcritique on the doctrine of § 301 preemption, see infra notes 218-21 and accompanyingtext.

122 Fox, 914 F.2d at 803.

123 Id. This statement by the court is inaccurate, because the DelCostello Court did

not forge a statute of limitations for all § 301 claims, but only for hybrid claims thatcombined breach of collective bargaining agreement with breach of the duty of fairrepresentation. See DelCostello, 462 U.S. at 168-71.

124 For further discussion on how expansive § 301 preemption compounds the

problem of expansive DelCostello application, see infra notes 217-21 and accompanyingtext.

125 OHIO REV. CODE ANN. § 2305.06 (West 2004) (fifteen-year statute of limitations

for actions for breach of written contract).126 Id. § 2305.07 (six-year statute of limitations for actions for breach of unwritten

contract).127 Id. § 2305.09 (four-year statute of limitations for actions for fraud).

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law, 128 the practical reality of the decision was to foreclose Fox from filingher state claims by trimming her time for doing so to as much as one-thirtieth.

The Sixth Circuit has not limited § 301-hybrid preemption and dismissalto classic contract claims such as promissory estoppel and fraud. In Adkins v.General Motors Corp., the court held that § 301 preemption extended toclaims of emotional distress and subsequently dismissed the claims as time-barred under DelCostello.129 In Adkins, the plaintiff-employees alleged thatthe conduct of their employer and union representative during collectivebargaining-which they claimed amounted to collusion-intentionallyinflicted severe emotional distress upon them. 130 The plaintiff-employeesargued that the state's interest in protecting its citizens from emotional harmprecluded their claim from complete preemption under § 301,131 an argumentwhich the district court accepted in part. 132 The court of appeals reversed,finding all of the emotional distress claims completely preempted under§ 301.133 The court found that the essence of the plaintiff-employees'emotional distress claim went "to the quality of their union representationand the fairness of their employer's labor practices, issues central to theconcerns of federal labor law"; thus, "the state interest in adjudicatingplaintiffs emotional distress claims [was] too insubstantial to defeat

128 See Fox, 914 F.2d at 799 (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 394

(1987)). The Caterpillar Court concluded that "state law does not exist as an independentsource of private rights to enforce collective bargaining contracts." Caterpillar, 482 U.S.at 394.

129 946 F.2d 1201, 1213 (6th Cir. 1991).

130 Id. at 1204.131 The plaintiff-employees relied upon the Supreme Court's decision in Farmer v.

United Bhd. of Carpenters & Joiners of America. Id. at 1212. In Farmer, a union officialwas "subjected to a campaign of personal abuse and harassment" during a dispute withother union officials. 430 U.S. 290, 292 (1977). While conceding that "a rigid applicationof the Garmon doctrine might support the conclusion ... that [the plaintiffs] entireaction was preempted by federal law," the Court nonetheless concluded that the claim ofintentional infliction of emotional distress was not preempted. Id. at 302. The Courtrecognized that the state "has a substantial interest in protecting its citizens from the kindof abuse of which [the plaintiff] complained"; thus, it could not "conclude that Congressintended [through the NLRA] to oust state-court jurisdiction over actions for tortiousactivity such as that alleged in this case." Id. at 302, 305.

132 The district court held that as far as the emotional distress claims were based onthe withholding of information contained in the collective bargaining agreement, theywere preempted by § 301; however, as far as the emotional distress claims were based onconcealing facts surrounding the formation of the agreement, the claims were notpreempted. Adkins, 946 F.2d at 1212.

133 Id. at 1213.

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complete preemption."' 134 Since this preempted state law claim was joinedwith a duty of representation claim, the court characterized it as a hybridclaim and dismissed it as time-barred under 10(b).135

Another Sixth Circuit case is significant for fashioning a non-LMRAfederal claim into a § 301 hybrid claim on the basis that uniformity in thefederal labor common law demanded an analogy to the NLRA statute oflimitations. In International Association of Machinists and AerospaceWorkers v. Tennessee Valley Authority, the Sixth Circuit considered thelimitations period governing claims brought by a union against an employerand a larger labor organization. 136 The union, the International Association ofMachinists and Aerospace Workers (IAM), had members employed by theTennessee Valley Authority (TVA) and was a member organization of theTennessee Valley Trades and Labor Council (Council). 137 In 1991, TVAentered into a contract (Project Agreement) with the Council that governedthe use of labor unions by TVA contractors.1 38 After several of thecontractors employed workers from other unions for projects to which IAMworkers had traditionally been assigned, IAM filed a series of grievancesalleging breach of the Project Agreement. 139 Under the terms of the ProjectAgreement, these grievances were submitted to a committee consisting ofrepresentatives of TVA, its contractors, and the Council. 140 The Councildenied each of lAM's grievances, and subsequently denied 1AM's request forarbitration. 141

Roughly one year later, IAM brought a lawsuit against both TVA and theCouncil in the U.S. District Court for the Middle District of Tennessee.' 42

LAlM alleged breach of contract, inducement of breach of contract, andbreach of fiduciary duty, all causes of action it perceived as arising underTennessee state contract law and subject to a three-year statute oflimitations. 143 The district court disagreed and held the claims as arising

134 Id. In distinguishing Farmer, the court noted the Supreme Court "appear[ed] to

establish the boundary between the central concerns of federal labor policy and theunpreempted interests of state law in protecting its citizens," a boundary that in theinstant case had not been crossed in favor of the state. Id.

135 Id. at 1203.

136 108 F.3d 658, 661 (6th Cir. 1997).

137 Id. at 660.138Id.139 Id.

140 Id.

141 Id. at 660-6 1.142 Int'l Ass'n of Machinists, 108 F.3d at 661.

143 Id. AM argued that because the TVA was not subject to the NLRA or the

LMRA as a federal corporation, federal law should not apply to the breach of contract

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under federal law, and thus time-barred under the DelCostello six-monthstatute of limitations. 144

LAM argued in the court of appeals that its claim was not a DelCostello§ 301-duty of representation claim because, as a federal corporation, TVAwas specifically exempted from the NLRA and the LMRA.145 However, thecourt reasoned that because "a TVA union's federal common law duty of fairrepresentation is identical to that of a union whose members all work forprivate employers," the case was indistinguishable from DelCostello.146 LikeDelCostello, LAM's claim implicated "the need for stability and finality" inlabor grievance and arbitration proceedings. 147 Thus, "given the pervasivelyfederal nature of the rights and obligations of the TVA, its employees, andtheir unions," the court determined that IAM's claim fell "easily ... withinthe range of labor cases ... subject to the NLRA's six-month limitationsperiod," and as such was time-barred. 148 This case, although involving aunion as the plaintiff, may be one of the most expansive interpretations of theDelCostello exception, because even though the claim itself did not fallunder the NLRA or the LMRA, a perceived unity of purpose with federalsubstantive law nonetheless compelled application of the § 10(b) statute oflimitations. While this decision could be viewed at first blush as a proceduralone, the court clearly engaged in a substantive policy determination in itsadjudication of the case.

More recent Sixth Circuit hybrid cases illustrate the now-settled practiceof implementing the six-month statute of limitations whenever breach of acollective bargaining agreement action and breach of union duty ofrepresentation action appear in the same lawsuit. They also illustrate whichparty usually comes out on the losing end of that statute of limitations. InHanely v. International Brotherhood of Locomotive Engineers, the plaintiffHanely brought claims against his employer, CSX, and his union after aseniority dispute arising under the collective bargaining agreement. 149

Hanely alleged that he had been displaced on CSX's employment roster, inviolation of the collective bargaining agreement between CSX and the union,and accordingly filed a series of grievances with the company. 150 CSXdenied his claims, and over the course of the next several years, Hanely

action. Id. Moreover, IAM asserted that breach of fiduciary duty and inducement ofbreach claims arose solely under state law. Id

144 Id.

145 Id. at 663.146 Id.

147 Id. at 665.148 Int'l Ass'n of Machinists, 108 F.3d. at 665.

149 69 F. App'x 292, 293 (6th Cir. 2003).

150 Id. at 296.

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attempted to seek relief through his union representatives. 151 After the unionfailed to resolve his grievances, Hanely filed suit for breach of contractagainst CSX and breach of the union's duty of representation. 152

The Sixth Circuit affirmed the district court's grant of summaryjudgment in favor of the employer and union on the basis that Hanely's claimwas time-barred under DelCostello.153 With little discussion, the courtcharacterized Hanely's claim as a hybrid cause of action arising under federallabor law, which was required to have been brought within six months fromthe date Hanely knew or should have known about the union's breach of itsduty of fair representation. 154 The court determined that this limitationsperiod ended over four years prior to when Hanely actually filed suit. 155

Hanely's lawsuit-which would have easily met the limitations period hadstate breach of contract law applied 156 -was thus dismissed from federalcourt.

In Palmer v. Ford Motor Co., a thirty-year employee of Ford broughtclaims against his employer and union following a series of grievances hefiled with both the employer and the union.157 Similarly to Hanely, the courtcharacterized Palmer's lawsuit as a hybrid claim with little discussion, andapplied a six-month statute of limitations, which was fatal to his claim. 158

Once again, had Palmer only brought a § 301 claim against his employer, theclaim would have been subject to the Ohio contract limitations period, whichhe would have easily satisfied. Mechanical application of the DelCostellolimitations period once again applied, foreclosing his remedy in federalcourt.

'5' Id. at 296-97.15 2 Id. at 297.153 Id. at 293.154 Id. at 298-99.155 Hanely, 69 F. App'x at 299.156 Ohio applies a fifteen-year statute of limitations for actions on breach of written

contract. OHIO REV. CODE ANN. § 2305.06 (West 2004).157 No. 1:03CV430, 2004 U.S. Dist LEXIS 28073, at *5-6 (N.D. Ohio Apr. 22,

2004), aff'd, 134 F. App'x 887 (6th Cir. 2005).158 Id. at "16-17. The district court stated: "This is a claim under § 301 of the Labor

Management Relations Act ... otherwise known as a 'hybrid' action." Id. at *16. Thestatement is notable for its inaccuracy. Section 301 claims are not themselves hybridclaims. As explained above, hybrid claims were formed by the Supreme Court, notCongress, by combining § 301 claims with breach of union duty of representation claims.As illustrated by the Sixth Circuit in Kraftco and Anderson, straightforward § 301 claimsare treated under a different analysis with respect to the statute of limitations. SeeAnderson v. AT&T Corp., 147 F.3d 467, 474 (6th Cir. 1998); Cent. States Se. & Sw.Areas Pension Fund v. Kraftco Inc., 799 F.2d 1098, 1107-08 (6th Cir. 1986).

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The Hanely and Palmer cases in particular suggest a new trend in theSixth Circuit's application of DelCostello. While previous cases hadgrappled extensively with the question of whether or not a DelCostellohybrid claim even existed, Hanely and Palmer assume they do, with littlediscussion. The language contained in Palmer in particular suggests thatevery § 301 claim is a DelCostello hybrid claim subject to the NLRA statuteof limitations when, as discussed earlier, that is not the case.1 59 Since thetight statute of limitations applicable to hybrid actions will often mean thatthe question is dispositive of the plaintiff-employee's case, the lack of carefulanalysis in these cases is disturbing.

The Sixth Circuit has not limited its expansive interpretation ofDelCostello to cases that it perceived to consist of a hybrid § 301 cause ofaction. In Holmes v. Donovan, the court held that a LMRA § 302 claim wasgoverned by the six-month period under § 10(b) of the NLRA.160 A plaintiff-employee brought a § 302 claim 16 1 against his union, alleging that it hadaccepted a "thing of value" from an employer in violation of the LMRA. 162

The employee did not bring a claim against his employer: it was astraightforward § 302 claim against the union. Because no statute oflimitations was provided in § 302, the district court borrowed the six-monthperiod under the NLRA and dismissed the claim as time-barred. 163

In affirming the decision of the district court, the Sixth Circuit found a"similarity of purpose" between § 302 and § 301 hybrid claims thatcompelled application of the six-month NLRA statute of limitations. 164 Thecourt noted that § 302 claims and hybrid claims were both "designed toencourage and protect collective bargaining." 16 5 Furthermore, the courtfound that like hybrid claims, § 302 claims were similar to "unfair laborpractices" prohibited under the NLRA. 166 Like many provisions of the

159 See Palmer, 2004 U.S. Dist. LEXIS 28073, at *16; see also supra note 158.160 984 F.2d 732, 736-37 (6th Cir. 1993). As previously discussed, Holmes also

limited the reach of DelCostello with respect to another plaintiff-employee's LMRDAclaim. See supra notes 106-16 and accompanying text.

161 Section 302 of the LMRA provides that "[i]t shall be unlawful for any employer... to pay, lend, or deliver ... any money or other thing of value" to a union or laborrepresentative. 29 U.S.C. § 186 (2006). It is likewise illegal for the union orrepresentative to accept such money or thing of value. Id.

162 Holmes, 984 F.2d at 734.163 Id.164 Id. at 737. The court selected the six-month NLRA statute of limitations over

several alternative time periods under Tennessee law which ranged from twelve monthsto ten years. See id. at 735; TENN. CODE ANN. §§ 28-3-110, 39-12-206, 40-2-102, 48-18-601, 48-58-601 (2008).

165 Holmes, 984 F.2d at 736.166 Id.

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NLRA, § 302 "was enacted as part of a comprehensive revision of federallabor policy ... aimed at practices which Congress considered inimical to theintegrity of the collective bargaining process. '167 Thus, even though "whenCongress does not specify a statute of limitations to govern a federal action,the standard practice is to borrow an analogous statute from state law," 168 thecourt found the unity in purpose between § 302 and § 301 hybrid claims to besufficient to brush this practice aside, apply a six-month statute oflimitations, and dismiss the claim. 169

B. Inconsistency in DelCostello Application Across the Circuits

As the overview of the Sixth Circuit has indicated, federal courts mayapply the DelCostello rationale in varying limiting and expanding contexts.While some courts may only apply the NLRA statute of limitation in thenarrow circ*mstances illustrated in DelCostello, other courts may apply it toa variety of claims, including state claims found to be preempted by federallabor law and federal claims found to have a common purpose with hybridclaims under federal labor principles. The Sixth Circuit does not stand alonein this inconsistency; a brief overview of the use of DelCostello in othercircuits illustrates that predicting the applicable statute of limitations in laborlitigation is not always a sure thing.

The Fifth Circuit applied the NLRA six-month statute of limitations to anemployee's § 301 claim brought solely against his union and dismissed theclaim as untimely.' 70 In Smith v. International Organization of Masters,Mates, and Pilots, the plaintiff-employee was a third-officer on a vesselowned by his employer, who was a party to a collective bargainingagreement with the employee's union. 171 After the employee's discharge-based on a vessel collision for which he was allegedly at fault-he asked theunion to begin a grievance procedure set forth in the collective bargainingagreement, and filed a lawsuit against his employer.1 72 The unionsubsequently informed the employee that it would not pursue the grievance,and the employer was awarded summary judgment with respect to thelawsuit.' 73 The employee subsequently filed a claim under § 301 against hisunion, alleging damages arising out of its refusal to pursue his grievance. 174

167 Id. (quoting Arroyo v. United States, 359 U.S. 419, 425 (1959)).

16 8 Id. at 735.169 See id. at 736-37.170 Smith v. Int'l Org. of Masters, 296 F.3d 380, 383 (5th Cir. 2002).

171 Id. at 381.172 Id.

173 Id.

174 Id.

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The Fifth Circuit agreed with the district court's finding that the § 301claim against the union should be read as a claim of breach of duty of fairrepresentation. 175 Thus, the court considered what limitations period itshould apply to the duty of fair representation claim "standing alone."'176

Although noting that in DelCostello the Supreme Court explicitly limited itsanalysis to § 301 hybrid claims, the circuit court nonetheless held that"[f]ollowing the logic of DelCostello, such a [duty of fair representation]claim is also subject to the six-month limitations period."'177 Like a hybridclaim, the employee's duty of representation claim was most analogous to anunfair labor practice charge under the NLRA.178 While noting that "the Courtdid not necessarily define all breaches of a union's duty of fair representationas unfair labor practices," the "'substantial overlap' between the two causesof action compelled application of the six-month statute of limitations. 179

Guided by DelCostello, the Eleventh Circuit formulated a "fluidbalancing test" to determine what statute of limitations to apply tostraightforward § 301 claims.' 80 For example, in International Association ofMachinists and Aerospace Workers v. Allied Products, the plaintiff-unionbrought a § 301 claim against an employer to compel arbitration. 18' Thecourt noted that the case involved a straightforward § 301 action, as opposedto a hybrid claim, and acknowledged that Hoosier Cardinal182 "would seemto require" application of a state six-year statute of limitations for contractactions. 183 However, the court found that DelCostello brought "into questionthe automatic application of state statutes of limitations in straightforward§ 301 actions" and opened the door for federal courts to apply federal timeperiods when they provided a closer analogy than state statutes.1 84

Accordingly, the court adopted a rule which "require[d] the court to adoptstate limitations periods if they provide a direct analogy and arise out of

175 Id. at 382.

176 Smith, 296 F.3d at 382.

177 Id. at 382-83.

178 Id. at 383.179 Id. (quoting DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 170 (1983)).180 See, e.g., Int'l Ass'n of Machinists v. Allied Products Corp., 786 F.2d 1561,

1563 (11th Cir. 1986); Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 888 (11 th Cir.1985).

181 Allied Products, 786 F.2d at 1562.182 UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 708 (1966) (applying state

contracts limitation period to a straightforward § 301 claim).183 Allied Products, 786 F.2d at 1563.184 Id.

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similar policy considerations, but to adopt the § 10(b) period if state law doesnot afford sufficiently direct guidance. 185

Applying this test to the claim before it, the court found § 10(b) moreanalogous than available state contract periods.186 As an action to compel theemployer to participate in arbitration, the claim "involve[d] more federalconcerns than the simple breach of contract claim in Hoosier Cardinal,"notably, the "federal policy of the prompt resolution of labor disputes."'187

With the six-month NLRA limitation period in effect, the circuit courtaffirmed the district court's dismissal of the union's § 301 claim. 188

The Ninth Circuit declined to apply the six-month NLRA statute oflimitations to a pilot's "first right of hire" claim against two airlines. 189 InGonzalez v. Aloha Airlines, the pilot brought a lawsuit under the EmployeeProtection Program (EPP) of the Airline Deregulation Act 190 against theairlines, alleging he had been unlawfully denied preferential hiring status. 191

The applicable statute contained no limitation period, but the district court,relying on DelCostello, applied the NLRA six-month period, and barred theclaims as untimely. 192

The circuit court reversed, holding that a two-year state limitationsperiod for suits brought in state court seeking recovery authorized by federalstatute applied to the pilot's EPP claims. 193 While the court recognized thatthe "EPP claim may affect seniority relationships between employees, aswell as the relationship between the successful EPP litigant and theemployer," it found that because no union relationship was involved, the EPPclaim should be governed by state law. 194 The court noted that the federalpolicy furthered by the EPP was to assist employees who lost their jobs as aresult of airline deregulation, regardless of whether the airline was asignatory to a collective bargaining agreement. 195 Unlike the hybrid claim inDelCostello, the pilot's EPP claim did not invoke the federal policy

185 Id. (citing Samples, 755 F.2d at 888).186 Id. at 1564.187 Id.

188 Id. at 1564-65.189 Gonzalez v. Aloha Airlines, Inc., 940 F.2d 1312, 1315 (9th Cir. 1991).190 Law of July 5, 1994,49 U.S.C. app. § 1552(d) (repealed 1998).191 Gonzalez, 940 F.2d at 1314.192 Id.

193 Id. at 1316.194 Id. at 1315. This implication of employee-employer relationships was the district

court's basis for invoking DelCostello. Id.195 Id.

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surrounding collective bargaining-thus the application of a state statute oflimitations would not undermine such a policy. 196

The Seventh Circuit found that a LMRA § 303197 claim brought by aconstruction company against a union was subject to a five-year state statuteof limitations for tort actions, and not the six-month period under theNLRA. 198 In BE&K v. Will & Grundy, the plaintiff-construction companyentered into a contract with a third party contractor to provide various repairservices at oil refineries. 199 In response, and because the plaintiff was a non-unionized company, the defendant-union that represented workers at theserefineries threatened both the contractor and the oil refineries withpicketing.200 After being removed from the job due to the threat, the plaintiffsued the union under § 303, alleging an illegal threat of "secondarypickets." 201

The union argued that while § 303 does not expressly provide a statute oflimitations, it does provide that all claims arising under it are "subject to thelimitations and provisions of section 301 of this title. '202 The union reasonedthat DelCostello mandated use of the NLRA six-month statute of limitationsfor § 301 claims, and thus this limitations period applied for the § 303 claimas well, barring the plaintiffs lawsuit. 20 3 The circuit court, while noting thatat first blush the argument "seem[ed] logical enough," declined to apply theNLRA statute of limitations. 20 4 Because the "policy interests justifying a six-month limitations period for a hybrid section 301-fair representation claim donot exist when the suit involves a section 303 unfair labor practices claim,"the six-month period applied in DelCostello was not justified.20 5 Unlike theparties in DelCostello, the company and union were "completely unrelated"except for the fact that both were affected by the secondary boycott; thus,

196 Gonzalez, 940 F.2d at 1315. The court did not address whether DelCostello

would apply if either of the airlines involved were signatories to a collective bargainingagreement.

197 29 U.S.C. § 158(b)(4) (2006) (providing that "[i]t shall be an unfair laborpractice for a labor organization" to threaten action constraining business between twopersons, unless that action consists of a "primary strike or picketing activity").

198 BE&K Constr. Co. v. Will & Grundy Ctys. Bldg. Trades Council, 156 F.3d 756,763 (7th Cir. 1998).

199 Id. at 759.

200 Id. at 760.201 Id. at 760-61.202 Id. at 762 (quoting 29 U.S.C. § 187 (1994)).203 Id.204 BE&K, 156 F.3d at 762.205 Id. at 763.

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labor peace did not depend on the rapid resolution of the § 303 suit.20 6 Sincethe policy interests were divergent from DelCostello, the court applied themost closely analogous state limitations period: five-years for tort actions.20 7

IV. DELCOSTELLO IN CONTEXT: MOVING AWAY FROM THE FEDERAL

COMMON LAW APPROACH

As shown above, the application of DelCostello in federal labor litigationhas led to inconsistent limitations periods on claims brought by employees(and occasionally unions) against their employers and union representatives.Moreover, the doctrine established by DelCostello has become a potentweapon for employer- and union-defendants seeking to bar claims assertedagainst them. Particularly when combined with an expansive view of § 301preemption, the hybrid exception can be used to exclude a variety of statelaw claims that invoke collective bargaining principles. DelCostello's impactdoes not end with this practical impact on individual claims: rather, thehybrid exception implicates broader concerns with respect to both labor lawand the proper role of the federal Judiciary in lawmaking.

A. Putting the Collective Before the Individual

First, the use of the DelCostello doctrine to bar claims is illustrative of abroader trend of diminishing protection of unionized employees. 208 Byinvoking the need for national uniformity in the resolution of collectivebargaining disputes, the Court put the interests of the labor system over theinterests of individual unionized employees. While focus on the collectiveover the individual has long been considered a fundamental basis of laborlaw, expansive application of DelCostello goes too far and unfairlysubordinates the individual interests of employees by effectively barringthem from state law remedies. As a result, employees subject to a collectivebargaining agreement have less protection under existing law than their non-unionized counterparts.

The tension between individual employee rights and collective interestshas been present in federal labor law since the earliest Supreme Court

2 06 Id. (quoting Monarch Long Beach Corp. v. Soft Drink Workers, Local 812, Int'l

Bhd. of Teamsters, 762 F.2d 228, 231 (2d Cir. 1985)).207 Id. at 763. Since the union did not challenge which state statute should be

applied on appeal, the Seventh Circuit applied the limitations period that the district courtfound most analogous to § 303. Id.

208 See Stone, supra note 5, at 576-78. Stone argues that while protection of

unionized employees has decreased in recent years, protection for non-unionizedemployees has increased, leading to a "tension between the new individual employmentrights and the New Deal system of collective bargaining." Id. at 577.

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decisions interpreting the NLRA. In J.L Case v. NLRB, the Courtcontemplated the role of individual employment contracts in the context ofcollective bargaining.20 9 While the Court found that individual contractswere not forbidden by the NLRA, it held that such contracts could not beused to circumvent collective bargaining, nor to waive any benefit conferredby a collective bargaining agreement. 210 According to the Court's rationale:

The very purpose of providing by statute for the collective agreement is tosupersede the terms of separate agreements of employees with terms whichreflect the strength and bargaining power and serve the welfare of thegroup. Its benefits and advantages are open to every employee of therepresented unit, whatever the type or terms of his pre-existing contract ofemployment.

211

Even if the individual contract terms were more favorable than those foundin the collective bargaining agreement, the Court found that they were notpresumptively valid, since the "practice and philosophy of collectivebargaining looks with suspicion on such individual advantages." 212 However,the Court did hold that the individual employee was entitled to individualrights under the terms of the collective bargaining agreement. 213

The individual/collective tension persisted in Republic Steel Corp. v.Maddox, which held that a unionized employee must exhaust the grievanceprocedures provided under a collective bargaining agreement if they areexclusive by the terms of the agreement. 214 In so holding, the Courtrecognized the employer and union interest in establishing the "'commonlaw' of the plant" through grievance and arbitration, and found that"permit[ting] an individual employee to completely sidestep availablegrievance procedures" would undercut the exclusivity of this arrangement. 215

In his dissent, Justice Black decried what he considered the subrogation of an

209 321 U.S. 332, 333-34 (1944). The Court was tasked with determining whether

an employer's refusal to bargain on the basis that it would subordinate employees' rightsunder individual contracts constituted an unfair labor practice. Id.

210 Id. at 337-38.211 Id. at 338.212 Id. The Court did not decide the issue conclusively, leaving the question of

"whether under some circ*mstances [individual contracts] may add to [collectiveagreements] in matters covered by the collective bargain ... to be determined byappropriate forums under the laws of contracts applicable, and to the Labor Board if theyconstitute unfair labor practices." Id. at 339.

213 Id. at 336 ("[A]n employee becomes entitled by virtue of the Labor Relations

Act somewhat as a third party beneficiary to all benefits of the collective tradeagreement, even if on his own he would yield to less favorable terms.").

214 379 U.S. 650, 651-52 (1965).2 15 Id. at 653.

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"ordinary, common, run-of-the-mill lawsuit for breach of contract" in favorof federal labor policy interests.216 Under the majority's holding,"[e]mployees are thus denied a judicial hearing" in the name of"accommodating the wishes of employers and unions in all things over thedesires of individual workers." 217

As Professor Katherine Van Wezel Stone argues, the tension may be bestillustrated by the doctrine of § 301 preemption. 218 Broad § 301 preemptionextinguishes the plaintiff-employee's state law right, and forces the employeeto engage in private arbitration under the terms of the collective bargainingagreement, thereby denying the employee "the benefit of a judicial forum" aswell as "the benefit of the substantive provisions of the state employmentright. '219 According to Stone, the Supreme Court's justification for theexpansive preemptive effect of § 301 was to preserve the "sanctity of themini-democracy" of collective bargaining.220 Under an "industrial pluralist

216 Id. at 659 (Black, J., dissenting).

217 Id. at 662-63.218 See Stone, supra note 5, at 577-78 ("[B]y means of a broad § 301 preemption

doctrine, courts have erected a rigid barrier between collectively bargained rights andindividual employment rights. As a result, unionized workers now have, in manyrespects, fewer employment rights than do their nonunion brothers and sisters."). For anexample and discussion of broad § 301 preemption as it applies to a hybrid claim, seesupra notes 117-35 and accompanying text.

219 Stone, supra note 5, at 594-96 see also Grabar, supra note 15, at 1997-98

(recognizing that § 301 actions are "advantageous for many employer defendants becausethey place mandatory satisfaction of certain procedural burdens on aggrieved plaintiffs,"and are often "quashed during the first round of dispositive motions"); Yates, supra note15, at 484 (recognizing the "distinct advantage" an employer has in § 301 claims due toprocedural safeguards).

220 Stone, supra note 5, at 624. In Allis-Chalmers Corp. v. Lueck, the Court justified§ 301 preemption of state contract and tort actions upon "[t]he interests in interpretiveuniformity and predictability" of collective bargaining agreements. 471 U.S. 202, 211(1985). Subsequent § 301 decisions by the Court struggled to draw the line upon whichthis collective bargaining interest overrides the state law rights of individual workers. Forexample, in International Brotherhood of Electrical Workers v. Hechler, the Courtexpanded § 301 preemption to tort claims brought solely against the union bargainingrepresentative, on the theory that a court would have to interpret the collective bargainingagreement in order to determine whether the union owed the plaintiff a duty of care understate law. 481 U.S. 851, 862 (1987). In United Steelworkers of America v. Rawson, theCourt found that § 301 completely preempted a state law wrongful death action broughtby the survivors of minors who had died in a workplace accident. 495 U.S. 362, 371-72(1990). The Court reasoned that the tort claim could not "be described as independent ofthe collective bargaining agreement," because any duty breached by the union "was aduty arising out of the collective bargaining agreement signed by the Union as thebargaining agent for the miners." Id. at 371.

The Court began to push back against broad preemption of individual state lawclaims in Caterpillar Inc. v. Williams, which held that a state law claim alleging breach of

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view" of labor relations, federal courts tend to believe that "the terms of thebargain that the parties to the mini-democracy reach, and the enforcementmechanism that the parties establish, are superior to any state-imposedemployment terms." 221 Thus, even if an individual employee can obtain ahigher degree of protection on his own under state law, as is often the case,the industrial pluralist view dictates that he must yield to the result achievedthrough collective action.222

If indeed "sound labor policy dictates protection of employees, whetheror not they are represented by unions and participate in the collectivebargaining process," 223 why should we deny unionized employees access tostate common law protection? In light of the labor movement's increasinginability to represent the interests of its constituent employees,224 the answeris we should not. The collective bargaining process itself can subordinate the

individual employment contracts was not removable to federal court by virtue of § 301preemption. 482 U.S. 386, 398-99 (1987). The Court first explained the uniquelypowerful preemptive effect of § 301 as a corollary to the well-pleaded complaint rule. Id.at 393; see also supra note 121. The Court then recognized that if the plaintiff-employeeshad brought claims arising out of the applicable collective bargaining agreement, § 301preemption takes effect. Caterpillar, 482 U.S. at 394-95. However, as masters of thecomplaint, the plaintiff-employees instead chose to bring claims arising out of individualcontracts; thus the defendants were precluded from "injecting a federal question into anaction that asserts what is plainly a state-law claim, transform[ing] the action into onearising under federal law, thereby selecting the forum in which the claim shall belitigated." Id. at 398-99. In Lingle v. Norge Div. of Magic Chef Inc., the Court similarlyheld that "even if dispute resolution pursuant to a collective bargaining agreement, on theone hand, and state law, on the other, would require addressing precisely the same set offacts, as long as the state-law claim can be resolved without interpreting the agreementit*elf, the claim is 'independent' of the agreement for § 301 preemption purposes." 486U.S. 399, 409-10 (1988). For a brief discussion of the Court's recognition in Farmer v.United Brotherhood of Carpenters, 430 U.S. 290 (1977), of the state's interest inprotecting its citizens vis-A-vis tort claims superseding federal labor policy, see supranote 131.

221 Stone, supra note 5, at 625. Stone describes "industrial pluralism" as a"descriptive and prescriptive vision of the workplace as a microcosmic constitutionaldemocracy, a mini-democracy in the private sphere." Id. at 623. This "mini-democracy"consists of a judicial branch: private arbitration to decide disputes arising under thecollective bargaining agreement. Id. See generally GOULD, supra note 5, at 77 (arguingthat collective bargaining is a more effective way to protect worker rights, despite thedevelopment of state wrongful discharge law).

222 As William Gould recognizes, state law wrongful discharge litigation, in the

non-union context, has been the "most sweeping and radical change in American laborlaw." Gould, supra note 5, at 65.

223 Id. at 8.

224 See id. at 2 (noting that the "decline of the labor movement itself... has made

workers more vulnerable than at any time since the Great Depression of the 1930s").

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interests of employees.225 Moreover, many employees are not even willingconstituents of their union representative; thus, to further deny theseemployees relief carved out by state law-independent of the federalscheme-is an unconscionable denial of individual rights.

Yet the DelCostello hybrid exception builds on this theme of denyingunionized employees rights in the name of a national collective bargainingpolicy. Under the exception, not only must the unionized employee exhaustall remedies under the collective bargaining agreement, but the employeemust file suit within six months of accrual of the claim, greatly enhancing the"distinct advantage" the defendant-employer already possesses.226 TheDelCostello Court's justification for borrowing the six-month statute oflimitations over longer state limitations periods was in part to promote "thenational interests in stable bargaining relationships and finality of privatesettlements. ' 227 Similar to what Stone perceives as the industrial pluralistjustification for § 301 preemption, the DelCostello rationale puts theautonomy of private dispute resolution under collective bargaining ahead ofindividual employee rights. While a non-unionized employee is free to bringa breach of contract claim against his or her employer within a period of

225 Under a "revisionist" view of labor law, collective bargaining is rejected as an

undesirable institution, in favor of employment-at-will. See PAUL C. WEILER, GOVERNINGTHE WORKPLACE: THE FUTURE OF LABOR AND EMPLOYMENT LAW 118-19 (1990). Such aview considers at-will employment, with accompanying state common law remedies, tobe a more sound approach economically as well as a more just approach individually.See, e.g., DAN C. HELDMAN ET AL., DEREGULATING LABOR RELATIONS 10-11 (1981)

(arguing for deregulation of the labor market as economically beneficial to consumersand employees alike). Heldman claims that a deregulatory approach "focuses on theemployee-the central participant in the labor relations arena whose interests are all toooften submerged in the machinations of large unions, big government, and corporations."Id. at Foreward. See also, e.g., Richard A. Epstein, A Common Law Approach for LaborRelations: A Critique on the New Deal Labor Legislation, 92 YALE L.J. 1357, 1357-58(1983). In Epstein's famous labor law critique, he argues:

New Deal [labor] legislation is in large measure a mistake that, if possible, should bescrapped in favor of the adoption of a sensible common law regime relying heavilyupon tort and contract law. The tort principles protect all individuals against the useor threat of force, and--of great relevance here-against deliberate inducement ofbreach of contract. The contract principles allow individuals within this socialframework of entitlements to make whatever bargains they please with whomeverthey please.

Id. The limited scope of this Note prevents an analysis of such freedom-of-contract viewof labor law; however, it is worth noting that broad DelCostello application underminesthe common law contract and tort basis for this approach.

226 See Yates, supra note 15, at 484.

227 DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 171 (1983) (quoting UPS,

Inc., v. Mitchell, 451 U.S. 56, 70-71 (1981) (Stewart, J., dissenting)).

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several years, a unionized employee whose breach of contract claim fallsunder a § 301 hybrid claim must bring suit within six months of accrual,greatly enhancing the possibility of dismissal.

B. Judicial Legislation

The "national uniformity" in collective bargaining justification inDelCostello mirrors the justification set forth by the Court in crafting thedoctrine of § 301 preemption, and implicates the second problem of hybridclaim application: the proper role of the federal court in substantivelawmaking. In Textile Workers Union v. Lincoln Mills, the Court struggledinternally with its own proper role in adjudicating federal labor litigation. 228

Specifically, it grappled with the precise power Congress granted federalcourts by enacting § 301.229 While the legislative history of the LMRA couldbe described as ambiguous at best,230 the majority nonetheless foundsufficient justification to find in § 301 not a mere grant of jurisdictionalauthority, but a prerogative to fashion substantive law through a "range of

228 In Lincoln Mills, 353 U.S. 448 (1957), the Court held that § 301 did not merely

grant the federal courts jurisdiction over breach of collective bargaining agreementclaims, but "expresse[d] a federal policy that federal courts should enforce theseagreements on behalf of or against labor organizations and that industrial peace can bebest obtained only in that way." Id. at 455. Thus, the Court found that federal substantivelaw, "which the courts must fashion from the policy of our national labor laws," wouldapply in § 301 claims. Id. at 456. This view of § 301 was not unanimous: in dissent,Justice Frankfurter construed § 301 as "an exclusively procedural provision, affording...an accessible federal forum for suits on agreements between labor organizations andemployers, but not enacting federal law for such suits." Id. at 462 (Frankfurter, J.,dissenting); see also Redish, supra note 4, at 789 n. 113.

229 See Lincoln Mills, 353 U.S. at 450-51 (discussing the two competing

interpretations of § 30 1).230 Both the majority and dissent closely examined the legislative history of the

LMRA, producing a variety of evidence to support their positions. For example, themajority found a Senate Report stating that "[s]tatutory recognition of the collectiveagreement as a valid, binding, and enforceable contract is a logical and necessary step" aspersuasive in justifying the formation of the federal labor common law. Id. at 454(quoting S. REP. No. 80-105, at 17 (1947)). In contrast, Justice Frankfurter considered thelegislative history as conferring under § 301 nothing more than the "conventionalremedies" available under state law. Id. at 469 (Frankfurter, J., dissenting). Much of thelegislative history can lend itself to both interpretations. For example, the ConferenceReport on § 301 provides that "[o]nce parties have made a collective bargaining contractthe enforcement of that contract should be left to the usual processes of the law and not tothe [NLRB]." H.R. REP. No. 80-510, at 42 (1947) (Conf. Rep.). It would seem that areasonable interpretation of "usual processes of the law" would be state contract law;however, the Lincoln Mills majority considered this phrase as supportive of their view.See Lincoln Mills, 353 U.S. at 452-53.

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judicial inventiveness." 231 In this sense the Court "unquestionably played anactivist role" in substantive labor law development. 232 By seeking to legislatefrom the bench by "shap[ing] policy in the manner in which it anticipate[d]that Congress would have decided," the Court circumvented the proper roleof the political branches and unilaterally brought the promulgation ofsubstantive labor lawmaking within the judicial realm. 233

Similarly, by invoking the perceived policy interests of § 301 to craft astatute of limitations for hybrid claims, the Court usurped the authority of thenational and state legislatures in determining the applicable time periods forfiling lawsuits against employers and unions. The federal courts, whenapplying a broad interpretation of DelCostello-and in particular whencombined with a broad interpretation of § 301 preemption-further usurp therole of state legislatures in determining the statute of limitations for state lawclaims.

This form of federal common law-making violates the non-delegationprinciple as it applies to the federal courts,234 and undermines the legitimacyof the democratic process by placing policy determinations in the hands ofnon-majoritarian judicial bodies.235 Certainly, the federal courts must attimes "gap-fill" statutes in order to give them practical application, andproviding a statute of limitations to a statutory claim when none is expresslyprovided for is a clear example of this necessity.236 However, when engagingin such gap-filling, the courts must be careful not to inject their own policydeterminations in place of those of the legislature; 237 if they do, then the gap-

231 Id. at 456-57.

232 See GOLDMAN, supra note 43, at 123.233 See id. at 124. Goldman weighs the competing arguments behind this form of

judicial activism. On one hand, it threatens democratic institutions by enactingsubstantive law which, by virtue of the lengthy legislative process, may prevail despitemajority opposition. Id. However, the "very cumbersomeness of the legislative process"may justify judicial activism as "an absolutely essential ingredient in the survival of theAmerican governmental system." Id.

234 See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes

and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 422 (2008) (arguing that sincelegislative "delegations to courts ... raise precisely the same concerns as delegations toagencies," the non-delegation doctrine should apply to courts).

235 See Redish, supra note 4, at 801 ("In a representational democracy it is neither

morally nor politically legitimate for the federal judiciary ... to reverse or ignorecongressional choice.").

236 Professor Redish includes statute of limitations gap-filling in his list of judicial

practices which may be properly considered statutory interpretation, and not creativejudicial lawmaking. See id. at 794-96.

237 See id. at 795 (stating that judicial gap-filling "must be carefully confined ...

lest it effectively legitimize the very common law creation clearly prohibited by the Rulesof Decision Act").

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filling process is not merely procedural in nature, but rather a substantivedetermination regarding the nature of the rights implicated by a cause ofaction. By breaking from the tradition238 of borrowing statutes of limitationsfrom analogous state law, the DelCostello Court likewise supplanted thejudgment of the state legislatures-with respect to the causes of action thatthey have created-with its own musings on balancing national collectivebargaining interests. Furthermore, the federal courts, through inconsistentand broad application of DelCostello, have continued to replace the policyconsiderations of state legislatures with federal labor common law, resultingin limitations periods of much shorter length than state law provides. Whencombined with broad § 301 preemption, this can result in cases where anemployee's state law claims against an employer are absorbed by federal lawand summarily dismissed under the DelCostello statute of limitations. 239

The more sound and equitable approach with respect to breach ofcollective bargaining-breach of the duty of fair representation litigationwould be to move away from federal common law determinations, and allowthe claims to be subject to limitations periods expressly authorized by alegislative body. The most straightforward (albeit probably most unlikely)source of legislative authorization would be a congressionally-establishedlimitations period for all § 301 claims, hybrid or not. This could beaccomplished through a direct amendment to the LMRA, or through astronger residual limitations period with retroactive effect. 240 Directcongressional authorization would eliminate the need for any judicial gap-filling, increase the political legitimacy of § 301 claims,24 1 and provide aconsistent limitations period for § 301 claims across the circuits, regardlessof whether or not they are joined with a breach of the duty of fairrepresentation claim against the employee's union.

Until Congress adopts such a solution, or until the Supreme Courtabandons the hybrid approach, the federal courts should adhere to thetradition of borrowing state statutes of limitations. This can be done withoutviolating the precedent of DelCostello by interpreting the hybrid exceptionnarrowly, and by carefully parsing the facts of individual cases to ensurestrict application of the NLRA statute of limitations only when specificallyrequired by the DelCostello doctrine. Additionally, courts should apply a

238 See supra notes 19-20 and accompanying text.239 See discussion of Fox v. Parker Hannifin Corp. and Adkins v. Gen. Motors

Corp., supra notes 117-35 and accompanying text.240 As noted earlier, the current federal residual statute of limitations provision, 28

U.S.C. § 1658, does not apply to any statutory cause of action in place before December1, 1990. See Mikva and Pfander, supra note 17, at 395.

241 See Redish, supra note 4, at 764 ("[i]t is democratically illegitimate for anunrepresentative judiciary to overrule, circumvent, or ignore policy choices made by themajoritarian branches.").

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narrow preemptive effect to § 301 claims, ensuring that state law claims areenveloped in the federal law only if they directly implicate a breach of acollective bargaining agreement. 242

The Sixth Circuit cases, Kraftco243 and Anderson,244 are illustrative ofsuch an approach. The Kraftco court was careful to note that DelCostello didnot "green light" the use of the NLRA statute of limitations to all laborclaims that could conceivably come under its influence. 245 Therefore, sincethe claim only involved a breach of a collective bargaining agreement, thecourt found it appropriate to apply a state contract statute of limitations.246

Similarly, the Anderson court recognized that the DelCostello Court "tookgreat pains to make clear that there is no generally applicable limitationsperiod for Section 301 claims; instead, the appropriate limitations perioddepends on the particular claims raised in the case. '247 Unlike other SixthCircuit cases which interpreted DelCostello as providing a universal statuteof limitations for any claim brought under § 301 (whether directly or throughpreemption), 248 the Kraftco and Anderson courts engaged in a nuanceddiscussion of the exact nature of cases involved, and attempted to apply thestatute of limitations most directly authorized by a legislative body for theclaim. This narrow and careful application of DelCostello respects the properrole of the legislature in crafting substantive provisions of the law, and doesnot put uniform collective bargaining interests over individual employeerights. Additionally, the practical effect of such an application will be toprovide plaintiff-employees with more generous limitations periods, andeliminate a tool used by employer-defendants to dispose of claims againstthem before they reach the merits.

V. CONCLUSION

This Note has shown that by crafting a new cause of action, and anaccompanying limitations period, under the guise of promoting nationalinterests in collective bargaining, the Supreme Court in reality created a

242 The federal courts have struggled in determining the breadth of § 301

preemption of state law claims. See supra note 219.243 Cent. States Se. & Sw. Area Pension Fund v. Kraftco Inc., 799 F.2d 1098, 1107-

08 (6th Cir. 1986); see supra notes 86-97 and accompanying text.244 Anderson v. AT&T Corp., 147 F.3d 467, 469 (6th Cir. 1998); see supra notes

98-105 and accompanying text.245 See Kraftco, 799 F.2d at 1107.246 Id. at 1108.

247 Anderson, 147 F.3d at 474.

248 See, e.g., Palmer v. Ford Motor Co., No. 1:03CV430, 2004 U.S. Dist. LEXIS

28073, at *16 (N.D. Ohio Apr. 22, 2004), aff'd, 134 Fed. App'x 887 (6th Cir. 2005); Foxv. Parker Hannifm Corp., 914 F.2d 795, 803 (6th Cir. 1990).

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significant roadblock for plaintiff-employees seeking remedy against theiremployers and unions. Not only must these employees exhaust remediescontained in the collective bargaining agreement before seeking judicialrelief, but they must file suit within six months, a much tighter time framethan is available to non-unionized employees claiming breach of contractagainst an employer under state law. By departing from its traditionalpractice of borrowing analogous state time periods, the Court usurped thelegislatures' lawmaking prerogative, and unjustly put the sanctity of thecollective bargaining institution ahead of individual employee rights.

The federal courts should respond to this error by limiting the scope ofthe DelCostello exception and carefully considering the actual nature of theclaims at bar. If the claim invokes a right created by virtue of state law, thenthe courts should apply the limitations period that the state legislatureintended, and not the period that the courts created through federal laborcommon law. Not only would this approach better embrace the proper role ofthe federal Judiciary, but it would also provide plaintiff-employees-whoalready face an uphill battle in § 301 claims249-a more equitable time periodto file claims against their unions and employers.

249 See supra notes 41-45 and accompanying text.

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