                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 08a0659n.06
                                    Filed: November 3, 2008

                                                  No. 07-4514

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT

EARL W. BURKHOLDER JR., et al.,   )
                                  )
     Plaintiffs- Appellants,      )                        ON APPEAL FROM THE UNITED
                                  )                        STATES DISTRICT COURT FOR THE
v.                                )                        NORTHERN DISTRICT OF OHIO
                                  )
INTERNATIONAL UNION, UNITED       )                        OPINION
AUTOMOBILE, AEROSPACE AND         )
AGRICULTURAL IMPLEMENT            )
WORKERS OF AMERICA, Local No. 12; )
INTERNATIONAL UNION, UNITED       )
AUTOMOBILE, AEROSPACE AND         )
AGRICULTURAL IMPLEMENT            )
WORKERS OF AMERICA;               )
DAIMLERCHRYSLER CORPORATION, )
                                  )
     Defendants - Appellees.      )
                                  )

         Before: DAUGHTREY, GILMAN, and ALARCÓN, Circuit Judges.*

         Arthur L. Alarcón, Circuit Judge. Appellants are machine repairmen presently or formerly

employed by the DaimlerChrysler Corporation (“DaimlerChrysler”) at two Chrysler Jeep plants in

Toledo, Ohio. Appellants claim that their union, Appellees International Union United Automobile,

Aerospace and Agricultural Implement Workers of America (“UAW”) and International Union

United Automobile, Aerospace and Agricultural Implement Workers of America, Local 12 (“Local

12”), breached their duty of fair representation by favoring certain skilled workers—namely



        *
           The Honorable Arthur L. Alarcón, Senior Circuit Judge for the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
millwrights and electricians—over Appellants, who are machine repairmen.                 This alleged

preferential treatment caused Appellants to lose training and employment opportunities that led to

decreases in pay and, ultimately, job losses in greater proportion than millwrights and electricians.

       Appellants initially filed suit against UAW and Local 12 on August 26, 2002. On November

25, 2002, pursuant to Rules 19(a)(1)(A) and (a)(1)(B)(i) of the Federal Rules of Civil Procedure,

UAW and Local 12 filed a motion to add DaimlerChrysler as a defendant on the bases that it was

a party necessary for full relief and, if not added, DaimlerChrysler’s ability to protect its interest

would be impaired. The district court granted this motion on December 3, 2002. Appellants added

DaimlerChrysler as a defendant in their subsequently filed Third Amended Complaint, but made no

allegations against DaimlerChrysler.

       On May 19, 2006, UAW and Local 12 moved for summary judgment on six grounds: (1)

Appellants’ claims under section 9(a) of the Labor-Management Relations Act, 29 U.S.C. § 159

(“Section 9(a)”), should be considered hybrid claims pursuant to section 301 of the

Labor-Management Relations Act, 29 U.S.C. § 185 (“Section 301”), and Appellants had not alleged

and could not show a breach of the collective bargaining agreement; (2) Appellants had no evidence

to support the allegation that the unions used their influence with DaimlerChrysler to cause plaintiffs

to be disproportionately laid off; (3) Appellants could not show that they had any right to be cross-

trained; (4) Appellants could not show that they were denied fair representation; (5) Appellants could

not show a breach of fair representation and any claims relating to the lines of demarcation

committee were barred by the statute of limitations; and (6) Appellants could not show they were

denied apprenticeship training.




                                                 -2-
       Following the initial summary judgment briefing, the district court asked the parties to file

supplemental briefs regarding whether Appellants exhausted internal union remedies prior to filing

the complaint. The district court granted the UAW and Local 12’s motion for summary judgment.

For the reasons that follow, we vacate and remand for further proceedings.

                                                 I

       Appellants are present or former employees of DaimlerChrysler at two Chrysler Jeep

plants in Toledo, Ohio. DaimlerChrysler employs several kinds of employees, known as “skilled

tradesmen,” at the Toledo plants. This case implicates three groups of skilled tradesmen:

machine repairmen, millwrights, and electricians. Appellants are machine repairmen.

       Until 1997, the skilled tradesmen at DaimlerChrysler’s Toledo plant were represented by

two unions. The UAW represented, among others, millwrights and electricians. The Mechanics

Education Society of America (“MESA”) represented machine trades employees, including

machine repairmen. The MESA collective bargaining agreement included “lines of demarcation”

that delineated what type of work was assigned to its member employees, and the division of

work among the skilled trades. Lines of demarcation determine what type of work will be made

available to each trade, and the number of workers from each trade needed to complete the work.

       In 1997, former MESA members became UAW members and also became subject to a

new UAW collective bargaining agreement. The new collective bargaining agreement did not set

forth lines of demarcation.

       In 1999, when DaimlerChrysler built a second Jeep plant, problems developed as to

which group of skilled tradesmen (e.g., machine repairmen, millwrights, or electricians) should

do which work. In January 2001, Local 12 announced the creation of a Lines of Demarcation


                                                -3-
Committee (“LDC”) to create and draft lines of demarcation that would distribute the work

among the skilled tradesmen. Representatives were elected and the LDC was formed by March

2001. Meanwhile, at the first plant, one Jeep product line was discontinued, and another product

line reduced the number of Jeeps produced. This resulted in layoffs from August 2001 until

August 2002.

       In January 2002, Appellant Thomas Rutherford challenged the March 2001 formation of

the LDC by filing an internal appeal at the local union level. The union determined that the

appeal was untimely because it was filed more than six months after the LDC had been created.

After an unsuccessful series of attempts to have this internal union appeal, as well as other

grievances, heard, Appellants filed their first complaint in this matter on August 26, 2002.

       Appellants alleged in their complaint that UAW and Local 12 used their influence to

favor millwrights and electricians over machine repairmen. They also contended that the

creation of the LDC was not authorized by the union bylaws or constitution. Further, Appellants

asserted that the work designations set forth in the lines of demarcation, created by the LDC,

resulted in machine repairmen losing work and employment opportunities and, ultimately, being

laid off in a greater proportion than the other skilled tradesmen. Appellants amended their

complaint five times, adding additional plaintiffs and DaimlerChrysler as a defendant. Each

complaint, however, sets forth substantially identical allegations. On May 19, 2006, UAW and

Local 12 moved for summary judgment. The district court granted this motion on October 26,

2007, holding that Appellants failed to exhaust internal union remedies and were not excused

from doing so. Appellants have timely appealed the district court’s order.

                                                 II

                                                -4-
       This Court reviews de novo appeals from orders granting summary judgment. EEOC v.

Univ. of Detroit, 904 F.2d 331, 334 (6th Cir. 1990). Summary judgment is granted when the

movant demonstrates that the pleadings, depositions, affidavits, and other evidence available to

the court establish no genuine issue of material fact. Fed. R. Civ. P. 56(c). If the movant meets

its burden, the responding party must demonstrate that there is a genuine issue of material fact in

dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 572, 586 (1986). The

responding party must set forth sufficient evidence supporting a claimed factual dispute.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the responding party fails to make

a showing on an element for which he or she bears the burden of proof, the movant is entitled to

summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). We

review the evidence in the light most favorable to the party opposing the motion. Matsushita,

475 U.S. at 587.

       In this case, however, the district court failed to address a threshold statute of limitations

issue that could render the case untimely. For that reason, we will remand for the district court to

reach a decision on the applicability of the statute of limitations. See Dandridge v. Williams, 397

U.S. 471, 476 n.6 (1970) (“When attention has been focused on other issues, or when the court

from which a case comes has expressed no views on a controlling question, it may be appropriate

to remand the case rather than deal with the merits of that question in this Court.”); Mt. Clemens

v. EPA, 917 F.2d 908, 916 n.7 (6th Cir. 1990) (remanding to district court and declining to affirm

on alternative grounds “[b]ecause these arguments were not addressed by the district court and

additional fact finding would be required to resolve the issues raised”).

                                                 A

                                                 -5-
        In its decision granting summary judgment, the trial court did not address the question

whether Appellants filed their complaint within the applicable statute of limitations period. See

Burkholder v. UAW, et al., No. 02cv7422, 2007 WL 3165789 (N.D. Ohio Oct. 26, 2007). A

complaint based on a union’s breach of the duty of fair representation is subject to a six-month

statute of limitations period. 29 U.S.C. § 160(b); Delcostello v. Int'l Bhd. of Teamsters, 462 U.S.

151, 155 n.2 (1983). “As a general rule, the limitations period begins to run when the potential

plaintiff ‘knows or should have known of the union’s alleged breach of its duty of fair

representation.’” Ratkosky v. United Transp. Union, 843 F.2d 869, 873 (6th Cir. 1988). The

statute of limitations may be tolled during the time in which an employee pursues internal union

remedies. Garrish v. Int’l Union, 417 F.3d 590, 595 (6th Cir. 2005). However, “the statute of

limitations is not tolled during the time an employee pursues internal union remedies that are

completely futile.” Id.

        Appellants’ breach of the duty-of-fair-representation claims relate to the manner in which

the unions created the LDC and the subsequent effect from the creation and implementation of

the lines of demarcation. According to the UAW and Local 12, the LDC elected representatives

in January 2001 and was formed in March 2001. Mr. Rutherford internally appealed the

formation of the LDC on January 4, 2002, nine months after the LDC was created. Appellants

filed the original complaint on August 26, 2002, one year and five months after the LDC was

formed. It is not clear from the record whether any events occurred between the formation of the

LDC and Mr. Rutherford’s initial internal union appeal, or the filing of the original complaint in

this action, that create a basis for relief that is not time-barred.




                                                   -6-
        Moreover, Appellants filed a Fifth Amended Complaint on September 29, 2005, that,

apart from the inclusion of additional plaintiffs, includes allegations that are substantially

identical to the first complaint. These allegations assert claims within the six-month statute of

limitations period. Appellants allege that “[d]uring . . . the last six months, defendants . . . clearly

favored other skilled trades . . . over the machine repairmen who are the plaintiffs.” But the Fifth

Amended Complaint fails to specify when the alleged breaches occurred or when Appellants

learned of them. For example, Appellants allege that “Defendants . . . breached [their] duty of

fair representation owed to the plaintiffs . . . . [and] continue to breach [their] duty of fair

representation owed to plaintiffs and this constitutes a continuing violation of [their] duty of fair

representation.” There are no specific references to time, but Appellants allege that the acts

complained of constitute a “continuing violation.”

        Although the statute of limitations is tolled while a party pursues internal union remedies,

it is not tolled if the employee is pursuing internal union remedies that are completely futile.

Garrish, 417 F.3d at 595. In their brief in support of their summary judgment motion,

Appellants attempted to avoid the exhaustion bar by stating that they could not be afforded

complete relief through the internal appeal process.

        We have a duty to remand a matter for an evidentiary hearing where the facts do not

appear in the record. See, e.g., Ringrose v. Engelberg Huller Co., 692 F.2d 403, 405 (6th Cir.

1982) (remanding issues of fact relating to the statute of limitations to the district court for a

factual determination); Leon v. Fed. Reserve Bank of Chicago, 823 F.2d 928 (6th Cir. 1987)

(same). Accordingly, upon remand, the trial court is instructed to determine whether Appellants’

claims survived the statute of limitations.

                                                   -7-
                                                 B

       If the district court determines upon remand that Appellants filed the action within the

limitations period, it must determine whether Appellants’ failure to exhaust is excused by the

UAW and Local 12’s breach of the duty of fair representation. See Williams v. Molpus, 171 F.3d

360, 369 (6th Cir. 1999) (providing that “[t]he general requirement that a grievant must exhaust

his or her internal union remedies, however, is excused if the union breaches its duty of fair

representation.”) (relying on Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571 (1976)).

       The UAW and Local 12 ask this court to affirm the grant of summary judgment,

contending that the holding in Molpus is wrong and confuses the requirement to exhaust

contractual grievance procedures with internal union procedures. The UAW and Local 12 argue

that Hines addresses the issue regarding the contractual grievance procedure, under a collective

bargaining agreement, rather than the internal union procedure, under a union constitution. We

disagree.

       In both Hines and Molpus, the plaintiffs alleged breach of the collective bargaining

agreement and a breach of the duty of fair representation. See Hines, 424 U.S. at 556; Molpus

171 F.3d at 364. In fact, in Hines, the Court explained that “[t]o prevail against either the

company or the Union, [plaintiffs] must not only show that their discharge was contrary to the

contract but must carry the burden of demonstrating a breach of duty by the Union.” Hines, 424

U.S. at 570-71 (emphasis added). Moreover, Molpus explicitly states that one is excused from

the exhaustion requirement if “the union breaches its duty of fair representation.” Molpus 171

F.3d at 364. Hines and Molpus address the duty of fair representation–not whether a plaintiff

pursues his or her grievance under the collective bargaining agreement rather than the union

                                                 -8-
constitution. Thus, the application of Molpus is not limited to a case involving only a grievance

pursued under the collective bargaining agreement.1

        The UAW and Local 12 also suggest that if applied, Molpus would eliminate the

exhaustion requirement in suits alleging breach of the duty of fair representation. This argument

fails to recognize that Hines was decided years prior to the creation of the Clayton factors. See

Clayton v. Int’l Union, UAW, 451 U.S. 679, 689 (1981).2 The exception to exhaustion set forth

in Molpus simply represents the first and second factors set forth in Clayton. Id.

        In Hines, the plaintiffs alleged their union breached its duty of fair representation by

“arbitrarily and in bad faith depriving petitioners of their employment and permitting their

discharge without sufficient proof.” Hines, 424 U.S. at 558. Failing to process a grievance or

submit evidence in support of a grievance could potentially fall under the first or second

exceptions to exhaustion set forth in Clayton. Therefore, the exception set forth in Hines, and

applied in Molpus, merely falls within the framework expressed in Clayton providing that

“courts have discretion to decide whether to require exhaustion of internal union procedures.”



        1
        Moreover, the court notes that the UAW and Local 12 argued in the trial court and in their
appellate brief that all of Appellants’ claims are based on the collective bargaining agreement. If the
court accepted this argument, which it does not, the UAW and Local 12 would presumably agree that
Molpus applies here. The UAW and Local 12 do not address this in their supplemental brief
addressing the application of Molpus.
        2
         Clayton set forth the following three factors that could provide a court with discretion to
excuse a failure to exhaust: “first, whether union officials are so hostile to the employee that he could
not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures
would be inadequate either to reactivate the employee’s grievance or to award him the full relief he
seeks under § 301; and third, whether exhaustion of internal procedures would unreasonably delay
the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these
factors are found to exist, the court may properly excuse the employee's failure to exhaust.” 451 U.S.
at 689.

                                                  -9-
Clayton, 451 U.S. at 689. We hold that Molpus applies to the instant matter and the district

court, upon remand, should consider whether Appellants’ failure to exhaust was excused by a

breach of the duty of fair representation.

        The UAW and Local 12 also ask this court to affirm the grant of summary judgment on

the alternate ground that they did not breach the duty of fair representation in creating and

implementing the lines of demarcation. However, because these arguments were not addressed

by the district court, and additional fact finding would be required to resolve these issues, we

decline their request. See Mt. Clemens v. EPA, 917 F.2d at 916 n.7 (remanding to district court

and declining to affirm on alternative grounds “[b]ecause these arguments were not addressed by

the district court and additional fact finding would be required to resolve the issues raised”). To

provide their arguments with a proper hearing, and to grant Appellants an opportunity to respond,

we will remand this matter to the district court for a hearing and findings on the issue of fair

representation. If the district court finds that there is a disputed issue of material fact on this

issue, it should proceed to a trial on the merits.

                                                     C

        The UAW and Local 12 also ask us to affirm the district court’s grant of summary

judgment on the alternative basis that Appellants’ claims arise under Section 301 rather than

Section 9(a). We decline to do so. The record shows that Appellants’ claims are asserted under

Section 9(a).

        “Section 9(a) of the National Labor Relations Act, by virtue of its grant of exclusive

representation status to a union over employees that make up a bargaining unit, creates a duty of

fair representation on the representative union.” Pratt v. UAW, Local 1435, 939 F.2d 385, 388

                                                  -10-
(6th Cir. 1991). “Section 9(a), in conjunction with 28 U.S.C. § 1337, creates a jurisdictional

basis for actions for breach of the duty of fair representation . . . .” Id.

        A union member may also bring suit against his union, or his employer, for breach of a

collective bargaining agreement, pursuant to Section 301. Such an action is known as a

“straightforward section 301 breach of contract claim [which] is merely a suit for breach of a

labor contract, whether that contract be a collective bargaining agreement or a union

constitution.” Moore v. Local Union 569 of Int'l Bhd. of Elec. Workers, 989 F.2d 1534, 1541 n.2

(9th Cir. 1993).

        When a union member files a Section 9(a) claim and a Section 301 claim in the same

complaint, the action is known as a hybrid suit. “‘A hybrid section 301 action involves two

constituent claims: breach of a collective bargaining agreement by the employer and breach of

the duty of fair representation by the union.’ The two claims are ‘inextricably interdependent.’

Unless a plaintiff ‘demonstrates both violations, he cannot succeed against either party.’”

Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003) (citations omitted).

        UAW and Local 12 contend that Appellants’ claims fail because they are hybrid claims.

We disagree. Appellants’ complaint alleges that the UAW and Local 12 breached the duty of fair

representation. There are no allegations against DaimerChrysler, nor have Appellants alleged a

breach of the collective bargaining agreement.

                                                   III

        The grant of summary judgment is VACATED and the matter is REMANDED with

instructions that the district court determine whether any of the claims asserted in the complaint

were made within the statute of limitations. If the court finds that any of Appellants’ claims

                                                  -11-
survive the statute of limitations bar, it should then determine whether the defendants breached

the duty of fair representation.




                                               -12-
       RONALD LEE GILMAN, Circuit Judge, concurring. I concur with the lead

opinion’s holding, but write separately to briefly address its analysis of Williams v. Molpus, 171

F.3d 360 (6th Cir. 1999). The lead opinion holds that Molpus, which provides that “[t]he general

requirement that a grievant must exhaust his or her internal union remedies . . . is excused if the

union breaches its duty of fair representation,” controls the “exhaustion” aspect of the current

case. Lead Op. at 8-10 (citing Molpus, 171 F.3d at 369). In so holding, the lead opinion reasons

that the exception to exhaustion set forth in Molpus simply represents the first and second factors

laid out in Clayton v. Int’l Union, UAW, 451 U.S. 679, 689 (1981). These factors are as follows:

       [F]irst, whether union officials are so hostile to the employee that he could not
       hope to obtain a fair hearing on his claim; [and] second, whether the internal
       union appeals procedures would be inadequate either to reactivate the employee’s
       grievance or to award him the full relief he seeks under § 301 . . . .

Lead Op. at 9, n.2 (quoting Clayton, 451 U.S. at 689).

       As the author of Molpus, I must sheepishly admit that I now believe the exhaustion-

exception language in that opinion was overbroad. Cf. Henslee v. Union Planters Nat. Bank &

Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never

comes, and so one ought not to reject it merely because it comes late.”). Molpus’s exception to

the administrative-exhaustion requirement does not simply mirror the first two Clayton factors as

the lead opinion states; instead, its broad language unconditionally waives the exhaustion

requirement for any plaintiff who alleges a breach of duty of fair representation in his or her

complaint. This consequence is contrary to the general policy of having labor disputes first

submitted to internal union grievance procedures, see Holmes v. Donovan, 984 F.2d 732, 738

(6th Cir. 1993), and the UAW appropriately criticizes the Molpus language for that reason.



                                                -13-
       But because this panel is powerless to overrule a prior panel’s published opinion, see

Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), Molpus must

govern our decision on the exhaustion issue. Molpus should, however, be closely scrutinized if

the issue comes before a future en banc panel of this court.




                                               -14-
