                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0513n.06

                                       Case No. 19-3012                             FILED
                                                                               Oct 11, 2019
                                                                          DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


Robert DeShetler, Jr., et al.,                    )
                                                  )
        Plaintiffs-Appellants,                    )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE NORTHERN DISTRICT OF
FCA US, LLC, et al.,                              )       OHIO
                                                  )
        Defendants-Appellees.                     )
                                                  )
                                                  )


BEFORE: BATCHELDER, DONALD, and READLER, Circuit Judges.

        BERNICE BOUIE DONALD, Circuit Judge. In January 2018, Plaintiffs-Appellants

filed claims against Defendants-Appellees for violations of the Labor Management Relations Act

(“LMRA”) based on negotiations that occurred among Defendant FCA US, LLC (“FCA”) and

Defendants (1) International Union, United Automobile, Aerospace and Agricultural Implement

Workers of America and (2) United Automobile, Aerospace and Agricultural Implement Works

of America, Region 2B (hereinafter collectively referred to as “UAW”) in 2012. Plaintiffs allege

a hybrid claim against all defendants under section 301 of the LMRA for FCA’s breach of various

collective bargaining agreements and UAW’s breach of their duty of fair representation.

Alternatively, Plaintiffs allege a claim against UAW for violations of their independent duty of

fair representation under 29 U.S.C. § 159(a). Defendants filed a motion to dismiss based on the
Case No. 19-3012, DeShetler v. FCA US, LLC


applicable statute of limitations, which the district court granted. Plaintiffs now appeal the district

court’s grant of dismissal.1 Because this Court finds that Plaintiffs’ claims fall outside the

applicable statute of limitations, we AFFIRM the district court.

                                                  I.

       FCA, which is short for Fiat Chrysler Automobiles, took over the Chrysler family of brands

following Chrysler’s bankruptcy in 2009. Jeep Wrangler is a Chrysler brand, and Plaintiffs worked

at a Jeep Wrangler paint shop in the North Assembly Plant in Toledo, Ohio. FCA currently

operates this assembly plant while UAW represents hourly workers at the plant. FCA, and

previously Chrysler, allowed third-party suppliers to perform work on the assembly line that was

traditionally completed by Chrysler employees.

       This case involves two groups of plaintiffs who were employed by these third-party

suppliers: the DeShetler Plaintiffs and the Sheets Plaintiffs. The DeShetler Plaintiffs were long-

serving hourly Chrysler employees and UAW members. When Chrysler began allowing third-

party suppliers to perform work on the assembly line, Chrysler began recruiting the DeShetler

Plaintiffs to retire and start working for the third-party suppliers. Each of the DeShetler Plaintiffs

retired from Chrysler in or around 2006 and began working at the Jeep Wrangler paint shop, where

they were employed by a series of third-party suppliers.2

       The Sheets Plaintiffs, who were not former Chrysler or FCA employees, were additional

employees hired by the third-party suppliers between 2006 and 2012.              Like the DeShetler

Plaintiffs, the Sheets Plaintiffs were employed by a series of third-party suppliers.           UAW



1
  The district court also dismissed an age discrimination claim under Ohio law, but Plaintiffs do
not appeal dismissal of that claim.
2
  Plaintiffs contend that the third-party suppliers were employers in name only and that they were
really employed by Chrysler and, subsequently, FCA. This issue is not relevant to this Court’s
conclusion, so the Court will not address it.
                                                 -2-
Case No. 19-3012, DeShetler v. FCA US, LLC


represented the DeShetler and Sheets Plaintiffs throughout this time period. When Plaintiffs were

hired by these third-party suppliers, they were each assigned a seniority date based on when they

were hired. As with many jobs, seniority comes with perks. Plaintiffs allege that the arrangement

allowing third-party employees to work on the assembly line violated long-established practice

and various collective bargaining agreements between FCA—and previously Chrysler—and

UAW.

       In late 2011 or early 2012, FCA decided to end the third-party arrangement with the goal

of having all the employees in the Wrangler paint shop be FCA employees. This decision created

the need for collective bargaining between FCA and UAW over the status of Plaintiffs who had

been working for the third-party suppliers. General Holiefield, then Vice President of the UAW’s

Chrysler Division, took over bargaining over the status of Plaintiffs on behalf of UAW. Alphons

Iacobelli, then FCA’s Vice President of Employee Relations, led the negotiations on behalf of

FCA.

       Plaintiffs allege that the bargaining was marred by several procedural and substantive

irregularities. First, Plaintiffs allege that Holiefield and his team locked the local union and

Plaintiffs out during the negotiations in violation of the UAW Constitution. The local union’s

exclusion from bargaining was also contrary to long and well-established practice.

       Furthermore, during the bargaining, Holiefield accepted FCA’s position, without objection

or dispute, that Plaintiffs had been employed solely by the third-party suppliers rather than FCA

and, thus, would be treated as new hires. Plaintiffs allege that this decision was “inexplicable”

given (1) a long course of dealing between FCA and UAW, (2) FCA’s assumption of a previous

collective bargaining agreement governing Plaintiffs, (3) the provisions of the various master

agreements and collective bargaining agreements between FCA and UAW, (4) the repeated



                                              -3-
Case No. 19-3012, DeShetler v. FCA US, LLC


assurances from FCA management and UAW that Plaintiffs would receive appropriate seniority,

and (5) the prior treatment of Plaintiffs as FCA employees notwithstanding their third-party

employers.

       After the negotiations, FCA agreed to hire many of the Sheets Plaintiffs, but they were

“arbitrarily assigned a seniority date of November 30, 2012,” rather than the date when they had

begun working in the Wrangler paint shop. This loss in seniority negatively affected the Sheets

Plaintiffs’ pay, pension, and other benefits. The DeShetler Plaintiffs were not hired; instead, FCA

maintained, and UAW agreed, that the DeShetler Plaintiffs could not be re-hired by FCA after

retiring in 2006. FCA and UAW reasoned that master agreements between the two prevented

retired employees from returning to work, but Plaintiffs allege that the master agreements did allow

the re-hiring of retired employees.

       Plaintiffs allege that UAW officials from Holiefield’s team “offered shifting and illogical

explanations” for FCA’s decision to terminate the DeShetler Plaintiffs. At one point, the local

union and a group of the DeShetler Plaintiffs met with an FCA human resources executive, who

agreed that Plaintiffs should continue to be employed under the terms of the master agreements,

but, shortly after, an UAW official on Holiefield’s team told the local union the opposite.

Additionally, during the internal appeals process, UAW stopped arguing that the master

agreements prohibited FCA from rehiring the DeShetler Plaintiffs, and, instead, UAW claimed

that they attempted to negotiate for the continued employment of the DeShetler Plaintiffs.

       On November 14, 2012, FCA and UAW prepared a memorandum that contained the

agreement regarding Plaintiffs’ employment. Four days later, on November 18, 2012, UAW

presented a collective bargaining agreement, which mirrored the terms contained in the

memorandum, to the members of the local UAW union for ratification. UAW officials from



                                               -4-
Case No. 19-3012, DeShetler v. FCA US, LLC


Holiefield’s team presented the agreement and indicated that, if it were not ratified, Plaintiffs

would all likely be terminated by FCA. The local union ratified the agreement.

         Plaintiffs filed grievances and appeals with both UAW and FCA. While Plaintiffs followed

the grievance procedures established by the collective bargaining agreements between UAW and

FCA, these grievances did not make it very far in the process because FCA denied the grievances,

and UAW refused to process the grievances beyond the early stages. Plaintiffs also filed an

internal appeal with the UAW. The internal appeal advanced through the entire appellate process

established by the UAW Constitution and ultimately made it to the Public Review Board, an

internal UAW body, which, on April 29, 2014, upheld the decision to deny relief to Plaintiffs.

Before the Public Review Board, Plaintiffs argued “that there was something amiss” at the

international UAW office and referenced “recent allegations about General Holiefield” and other

UAW officials. However, Plaintiffs maintain that they did not have knowledge that Holiefield had

accepted bribes to take FCA-friendly positions during collective bargaining negotiations until after

the unsealing of the indictments discussed below.

         On July 26, 2017, felony indictments of Alphons Iacobelli and Monica Morgan, General

Holiefield’s wife,3 were unsealed. The indictments alleged a bribery scheme wherein Iacobelli

diverted funds to Holiefield and Morgan in exchange for FCA-friendly positions during

negotiations.

         Plaintiffs filed claims against UAW and FCA on January 11, 2018, within six months of

the unsealing of the indictments. Plaintiffs brought two causes of action that are relevant for

purposes of this appeal: (1) a hybrid claim under section 301 of the LMRA against UAW and FCA

and (2) a claim against UAW for violation of its independent duty of fair representation under 29



3
    General Holiefield died in 2015.
                                               -5-
Case No. 19-3012, DeShetler v. FCA US, LLC


U.S.C. § 185. The district court consolidated the cases of the DeShetler Plaintiffs and Sheets

Plaintiffs on February 21, 2018. Plaintiffs filed amended complaints, and Defendants moved to

dismiss all claims. The district court found that both claims were time-barred and granted

dismissal.4 Plaintiffs filed a timely appeal.

                                                 II.

                                                 A.

       We review the district court’s dismissal of Plaintiffs’ amended complaints de novo,

accepting all factual allegations in the complaints as true and construing those allegations in the

light most favorable to Plaintiffs. Majestic Bldg. Maint., Inc. v. Huntington Bancshares Inc., 864

F.3d 455, 458 (6th Cir. 2017) (citations omitted). The standard is the same when the district court

concludes that a plaintiff has failed to meet the statute of limitations. Martin v. Lake Cty. Sewer

Co., 269 F.3d 673, 677 (6th Cir. 2001) (citation omitted). A motion to dismiss “is generally an

inappropriate vehicle for dismissing a claim based upon the statute of limitations” unless “the

allegations in the complaint affirmatively show that the claim is time-barred.” Cataldo v. U.S.

Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). Here, we conclude that the allegations in the

complaints,5 which are recited above and taken as true and in the light most favorable to Plaintiffs,

affirmatively show that Plaintiffs’ claims are time-barred.




4
  The district court also found that the hybrid claim against FCA and UAW should be dismissed
because Plaintiffs failed to allege that FCA breached any provision of a collective bargaining
agreement. Because this Court finds that Plaintiffs’ claims are time-barred, we need not address
this aspect of the judgment.
5
  The district court also relied on the Public Review Board’s decision from April 29, 2014, which
was attached to Defendants’ motion to dismiss. Before the district court, Plaintiffs argued that the
district court should not consider this document because it was not attached to Plaintiffs’ amended
complaints. Plaintiffs, however, do not challenge consideration of that document in this appeal,
so we will also consider the decision.
                                                -6-
Case No. 19-3012, DeShetler v. FCA US, LLC


                                                  B.

        Plaintiffs alleged two relevant claims against Defendants: (1) a hybrid section 301 claim

against UAW and FCA and (2) an independent fair representation claim against UAW under 29

U.S.C § 185. A hybrid section 301 action involves two interdependent claims: breach of a

collective bargaining agreement by the employer and breach of the duty of fair representation by

the union. Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (quoting Black v.

Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 583 (6th Cir. 1994)). To succeed against either the

union or the employer, plaintiffs must prove both violations. Id. With regard to a breach of a

collective bargaining agreement by the employer, plaintiffs must sufficiently plead a breach of an

actual provision of a collective bargaining agreement and cannot simply allege collusion that

affected the bargaining process. Swanigan v. FCA US, LLC, No. 18-2303, 2019 WL 4309672, at

*3 (Sept. 12, 2019).

        A union breaches its duty of fair representation when its actions or omissions are arbitrary,

discriminatory, or in bad faith. Garrison, 334 F.3d at 538 (citing Vaca v. Sipes, 386 U.S. 171, 190

(1967)). Plaintiffs do not need to show all three; rather, plaintiffs have three separate and distinct

routes to prove that a union violated its duty of fair representation. Id. (citing Black v. Ryder/P.I.E.

Nationwide, Inc., 15 F.3d 573, 584 (6th Cir. 1994)). A union’s actions are arbitrary if, in light of

the factual and legal landscape at the time of the union’s actions, “the union’s behavior is so far

outside a ‘wide range of reasonableness’ as to be irrational.” Id. (quoting Air Line Pilots Ass’n,

Int’l v. O’Neill, 499 U.S. 65, 67 (1991)). Discrimination must be “intentional, severe, and

unrelated to legitimate union objectives.” Amalgamted Ass’n of St., Elec. Ry. & Motor Coach

Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971) (citation omitted). “To demonstrate bad

faith, a plaintiff must show that the union acted with an improper intent, purpose, or motive



                                                 -7-
Case No. 19-3012, DeShetler v. FCA US, LLC


encompassing fraud, dishonesty, and other intentionally misleading conduct.” Ohlendorf v. United

Food & Commercial Workers Int’l Union, Local 876, 883 F.3d 636, 644 (6th Cir. 2018) (citation

omitted).

       Plaintiffs’ claims are governed by a six-month statute of limitations. DelCostello v. Int’l

Bhd. of Teamsters, 462 U.S. 151, 172 (1983). The statute of limitations begins to run when a claim

accrues, and, “[i]n general, a claim accrues when the claimant discovers, or in the exercise of

reasonable diligence should have discovered, the acts constituting the alleged violation. Robinson

v. Cent. Brass Mfg. Co., 987 F.2d 1235, 1239 (6th Cir. 1993) (internal alterations and quotations

omitted). This determination is an objective one, and the actual knowledge of Plaintiffs is not

determinative. Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1000 (6th Cir. 1994)

(citations omitted). “A hybrid § 301/fair representation claim accrues against both the union and

the employer when the employee knew or should have known of the acts constituting either the

employer’s alleged violation or the union’s alleged breach, whichever occurs later.” Lombard v.

Chrome Craft Corp., 264 F. App’x 489, 490-91 (6th Cir. 2008). Plaintiffs need not “know the

extent of the alleged breach of the duty of fair representation to file a claim.” Bowerman v. Int’l

Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local No. 12, 646 F.3d 360,

367 (6th Cir. 2011) (emphasis in original). The Supreme Court, in the context of other types of

claims, has also noted that “in applying a discovery accrual rule, we have been at pains to explain

that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock”

even if “considerable enquiry and investigation may be necessary” to discover the other elements.

Rotella v. Wood, 528 U.S. 549, 555-56 (2000).

       However, the statute of limitations will typically toll while plaintiffs are pursuing internal

union appeals, unless the appeal is “completely futile.” Robinson, 987 F.2d at 1242. Equitable



                                                 -8-
Case No. 19-3012, DeShetler v. FCA US, LLC


tolling under the doctrine of fraudulent concealment is available when “(1) the defendant

concealed the conduct that constitutes the cause of action; (2) defendant’s concealment prevented

plaintiff from discovering the cause of action within the limitations period; and (3) until

discovery[,] plaintiff exercised due diligence in trying to find out about the cause of action.”

Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1465 (6th Cir. 1988).

                                                III.

       Because the statute of limitations does not begin to run in a hybrid Section 301 claim until

plaintiffs knew or should have known that both the employer and the union breached (whichever

is later), Lombard, 264 F. App’x at 490-91, we first determine when Plaintiffs should have known

of each breach. Starting with FCA, Plaintiffs allege that FCA breached various collective

bargaining agreements by (1) allowing third-party suppliers to work on the assembly line, (2)

terminating DeShetler Plaintiffs, and (3) stripping Sheets Plaintiffs of their seniority. We assume,

without deciding, that Plaintiffs have alleged an actual breach of a collective bargaining agreement

rather than simply alleging collusion in negotiations. See Swanigan v. FCA US, LLC, No. 18-

2303, 2019 WL 4309672, at *3 (Sept. 12, 2019).

       The amended complaints show that Plaintiffs’ claims of breach by FCA accrued no later

than November 2012. According to Plaintiffs’ allegations, the third-party supplier arrangement

ended “no later than 2011,” although this allegation is disputed, and Plaintiffs further allege that

FCA “purported to officially take over direct management of the Wrangler Paint Shop” on

November 30, 2012. Taking the latter date in an attempt to construe Plaintiffs’ claims in a light

most favorable to them, we can see that six months from November 30, 2012, would be in May

2013. Likewise, the termination of the DeShetler Plaintiffs and the stripping of the Sheets

Plaintiffs’ benefits became effective on November 30, 2012. Again, six months would be in May



                                               -9-
Case No. 19-3012, DeShetler v. FCA US, LLC


2013. Plaintiffs were aware of these alleged breaches at the time and allege, throughout the

amended complaints, that these actions by the employer were in violation of various collective

bargaining agreements between FCA and UAW.

        Next, we turn to Plaintiffs’ discovery of the breach of the duty of fair representation by

UAW. Plaintiffs allege that UAW breached its duty of fair representation in several ways. First,

UAW “acted in an arbitrary, discriminatory and dishonest manner in its duty to represent Plaintiffs

in the bargaining process that resulted” in the November 2012 agreement stripping the Sheets

Plaintiffs of their seniority and terminating the DeShetler Plaintiffs. Next, Plaintiffs allege that,

despite UAW’s repeated assurances that the third-party supplier arrangement would not adversely

affect Plaintiffs, UAW “left Plaintiffs without any collective bargaining protection at all.” Finally,

UAW failed “to process their grievances beyond any stage over which it had discretion.”

        While less clear than Plaintiffs’ discovery of FCA’s alleged breaches, Plaintiffs’ discovery

of UAW’s breaches occurred, or should have occurred, by November 2012 as well. If we apply

the discovery accrual rule as envisioned by the Supreme Court in Rotella, 528 U.S. at 555, this

case is simple. Plaintiffs discovered their injuries, except for their issues with the grievance

process discussed below, in November 2012 when they were terminated or stripped of their

seniority. Even if we assume that Plaintiffs needed to discover, or be able to discover, the arbitrary,

discriminatory, or bad faith conduct by UAW before the claims accrued, see Garrison v. Cassens

Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003), Plaintiffs, based on their own allegations discussed

in more detail below, knew or should have known by November 2012 that the union had acted

arbitrarily.

        Plaintiffs allege that the bargaining between UAW and FCA in 2012 concerning Plaintiffs

“was marred by several procedural and substantive irregularities.” Plaintiffs allege that UAW



                                                - 10 -
Case No. 19-3012, DeShetler v. FCA US, LLC


excluded the local union in violation of both the UAW Constitution and long and well-established

practice. In Linton v. United Parcel Service, this Court held that “an unprecedented departure from

past practice . . . might very well constitute a breach of [a] union’s duty of fair representation.” 15

F.3d 1365, 1373 (6th Cir. 1994). Here, Plaintiffs allege just that: an unprecedented departure from

long and well-established practice.      Additionally, Plaintiffs allege that UAW “inexplicably

accepted” “without objection or dispute” FCA’s position that the DeShetler Plaintiffs could not be

re-hired, despite a long course of dealing and the provisions of the various collective bargaining

agreements. These allegations, along with the other allegations in the complaint, show that

Plaintiffs knew or should have known that UAW acted arbitrarily and, thus, breached its duty of

fair representation in November 2012.

       While the unsealing of the indictments in 2017 strengthened Plaintiffs’ claim, Plaintiffs’

own allegations show that they should have already known that UAW acted arbitrarily. In

Bowerman, this Court explained that Plaintiffs need not “know the extent of the alleged breach of

the duty of fair representation to file a claim.” Bowerman v. Int’l Union, United Auto., Aerospace

& Agric. Implement Workers of Am., Local No. 12, 646 F.3d 360, 367 (6th Cir. 2011) (emphasis

in original); see also Chapple v. Nat’l Starch & Chem. Co. & Oil, 178 F.3d 501, 506 (7th Cir.

1999) (“[T]he tolling inquiry asks only whether the plaintiff was unable to learn of the possibility

of its claim within the limitations period; it does not ask whether the plaintiff was unable to obtain

solid proof.”). Here, Plaintiffs may not have known the extent of UAW’s breach of the duty of

fair representation, but Plaintiffs should have known that UAW had violated the duty of fair

representation.

       Plaintiffs also allege that UAW failed to process its grievances beyond the early stages of

the appellate process. Although it is not entirely clear from the amended complaints, the Public



                                                - 11 -
Case No. 19-3012, DeShetler v. FCA US, LLC


Review Board’s Decision appears to mark the end of Plaintiffs’ appeals with UAW. The Public

Review Board released its decision denying Plaintiffs’ final appeal on April 29, 2014. Before the

Public Review Board, Plaintiffs argued “that there was something amiss” at the international UAW

office and referenced “recent allegations about General Holiefield” and other UAW officials.

Again, these allegations, along with allegations in the complaints, show that Plaintiffs knew or

should have known, as of April 2014, that UAW acted arbitrarily or, maybe even in bad faith,

meaning the statute of limitations would have run by October 2014.

          Next, we examine whether the statute of limitations was tolled. If we assume that

Plaintiffs’ claims against UAW were tolled while Plaintiffs pursued their claims within the internal

appeals processes of the UAW, Robinson v. Cent. Brass Mfg. Co., 987 F.2d 1235, 1242 (6th Cir.

1993), then we are still left with a filing deadline in October 2014, which is six months from the

date of the Public Review Board’s denial of Plaintiffs’ final appeal. Plaintiffs have also argued

for equitable tolling, but equitable tolling requires that “defendant’s concealment prevent[]

plaintiff from discovering the cause of action within the limitations period.” Pinney Dock &

Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1465 (6th Cir. 1988). Here, we have already

determined that Plaintiffs knew or should have known of UAW’s breach by April 2014. As such,

equitable tolling is not warranted here.

          Because we use the later date of Plaintiffs’ discovery of the breach by the employer or the

union, we hold that Plaintiffs’ claims against Defendants accrued and were no longer tolled by

April 2014 at the latest. And, because the statute of limitations expires six months from the date

of accrual, excluding periods where tolling occurs, the statute of limitations expired no later than

October 2014. Accordingly, Plaintiffs’ claims, which were filed on January 11, 2018, are time-

barred.



                                                - 12 -
Case No. 19-3012, DeShetler v. FCA US, LLC


                                             IV.

      For the foregoing reasons, we AFFIRM the district court’s grant of dismissal.




                                           - 13 -
