                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0328p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                             Plaintiffs-Appellants, -
 DALE GARRISH, et al.,
                                                      -
                                                      -
                                                      -
                                                          No. 03-2468
          v.
                                                      ,
                                                       >
 INTERNATIONAL UNION, UNITED AUTOMOBILE,              -
                                                      -
 WORKERS OF AMERICA; LOCAL 594 INTERNATIONAL -
 AEROSPACE, AND AGRICULTURAL IMPLEMENT

                                                      -
 AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; -
 UNION, UNITED AUTOMOBILE, AEROSPACE, AND
                                                      -
                                                      -
 and GENERAL MOTORS CORPORATION,
                            Defendants-Appellees. -
                                                     N
                      Appeal from the United States District Court
                      for the Eastern District of Michigan at Flint.
                    No. 00-40291—Paul V. Gadola, District Judge.
                                             Argued: June 8, 2005
                                    Decided and Filed: August 5, 2005
             Before: SILER and GIBBONS, Circuit Judges; WILLIAMS, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Harold Dunne, Livonia, Michigan, Steven B. Potter, DINN, HOCHMAN, POTTER
& LEVY, Cleveland, Ohio, for Appellants. Samuel C. McKnight, KLIMIST, McKNIGHT, SALE,
McCLOW & CANZANO, Southfield, Michigan, Stuart M. Israel, MARTENS, ICE, KLASS,
LEGGHIO & ISRAEL, Royal Oak, Michigan, for Appellees. ON BRIEF: Harold Dunne, Livonia,
Michigan, Steven B. Potter, DINN, HOCHMAN, POTTER & LEVY, Cleveland, Ohio, for
Appellants. Samuel C. McKnight, KLIMIST, McKNIGHT, SALE, McCLOW & CANZANO,
Southfield, Michigan, Stuart M. Israel, MARTENS, ICE, KLASS, LEGGHIO & ISRAEL, Royal
Oak, Michigan, Andrew M. Kramer, JONES DAY, Washington, D.C., for Appellees.




         *
          The Honorable Glen M. Williams, United States District Judge for the Western District of Virginia, sitting by
designation.


                                                          1
No. 03-2468                Garrish, et al. v. Int’l Union, UAW, et al.                                             Page 2


                                                _________________
                                                    OPINION
                                                _________________
        SILER, Circuit Judge. In this action brought under Section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185, Plaintiffs Dale Garrish, et al.,1 appeal the district court’s
grant of summary judgment to Defendants International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America (“UAW), its affiliated Local 594 (“Local 594”), and
General Motors Corporation (“GMC”). The district court concluded that Plaintiffs’ action was
barred by the statute of limitations because they failed to timely bring their claims. Having
concluded that Plaintiffs’ allegations are untimely and fail to state a cause of action, we AFFIRM.
                                                  BACKGROUND
        Plaintiffs are GMC employees who work in its Pontiac, Michigan Facility and members of
UAW and Local 594.2 GMC and UAW are parties to a National Collective Bargaining Agreement
(“NCBA”), while Local 594 and the Facility are parties to a Local Collective Bargaining Agreement
(“LCBA”). These two collective bargaining agreements govern the terms and conditions of
Plaintiffs’ employment. The NCBA specifically governs employment rights, including wages, hours
of employment, and working conditions. The LCBA permits its parties to negotiate those matters
not covered by the NCBA.
        In early 1997, Local 594’s Shop Committee renegotiated the LCBA between GMC
management and the Facility. Jay Campbell was the Shop Committee Chairman in charge of the
renegotiation and was assisted by Donny Douglas, a UAW International Representative assigned
to UAW’s GMC Department. These 1997 negotiations pertained to the settlement of specific
written demands and grievances immaterial to this appeal. On April 23, 1997, Local 594’s members
began a strike at the Facility over these unresolved demands and grievances. This strike lasted
eighty-seven days, finally ending in July 1997. Thereafter, Plaintiffs asserted that although GMC
met Local 594’s demands within the strike’s first month, the union fraudulently prolonged the strike
for two more months. Plaintiffs claimed that the union extended the strike to (1) require GMC to
hire Gordon Campbell (Jay Campbell’s son) and Todd Fante (a friend of Donny Douglas’s son) and
(2) obtain approximately $200,000 in payoffs from GMC to Local 594’s upper-level officials.
        When the strike began Gordon Campbell and Fante were neither GMC employees nor union
members. On August 4, 1997, GMC hired Gordon Campbell and Fante as journeymen vehicle
builders, i.e., in skilled trade positions. Pursuant to the NCBA, Plaintiffs insisted that the only way
a non-GMC individual can be hired as a journeyman in a skilled trades classification is through
either having become a journeyman by way of an apprentice program or having gained eight years
of experience in that skilled trade. On August 19, 1997, Plaintiffs challenged the credentials of all
new hires and demanded a complete investigation into Gordon Campbell’s and Fante’s credentials.
On August 29, 1997, two additional grievances were charged against Gordon Campbell and Fante,3
again challenging their credentials and claiming that they were wrongfully hired during the strike.


         1
          As there are 140 plaintiffs, they are collectively referred to as “Plaintiffs.” The four lead plaintiffs (and only
fact witnesses) in this case are Dale Garrish, Gerald McDonald, Gene Austin, and Janice Austin.
         2
             The “union” refers to both the UAW and Local 594.
         3
          Gordon Campbell and Fante are not parties to this appeal. See Garrish v. Int’l Union, UAW, 133 F. Supp. 2d
959, 967 (E.D. Mich. 2001).
No. 03-2468               Garrish, et al. v. Int’l Union, UAW, et al.                                         Page 3


        All grievances against Gordon Campbell and Fante, however, were withdrawn by Skilled
Trades Zoneman William Coffey in February 1999. On February 22, 1999, Garrish and other
members of Local 594 (including some Plaintiffs) appealed the withdrawal of the grievances. On
March 30, 1999, Plaintiffs’ appeal was held “to be filed in an untimely manner in accordance with
Article #33 of the [UAW] International Constitution.” On April 21, 1999, Garrish protested to Jay
Campbell that the appeal was timely and must be heard. Jay Campbell never responded, so Garrish
filed his appeal with the membership of Local 594. Although again considered untimely, on
February 1, 2000, the membership ultimately concluded that the appeal was timely filed. Plaintiffs
were very concerned that any internal appeal would be futile – Garrish opined that his “appeal has
been delayed literally years under the guise of untimeliness.”
         Ultimately, on August 7, 2000, Plaintiffs filed this action against Defendants pursuant to
§ 301 of the LMRA, as amended 29 U.S.C. § 185, for breach of contract and the duty of fair
representation. Plaintiffs sought the removal of Gordon Campbell and Fante from their skilled trade
positions, as well as compensatory damages in lost wages for 5,000 employees during the prolonged
strike and punitive damages from all Defendants. Plaintiffs also alleged that Local 594 extended
the strike two more months than necessary to force GMC to pay off upper-level Local 594 officials.
In the meantime, GMC determined that under the NCBA only the UAW, and not any local union
affiliate, may demand reinstatement of a grievance. Therefore, GMC concluded that Local 594’s
decision to withdraw the grievances challenging these two employees was reasonable and Local 594
was correct in deciding that an arbitrator would not uphold the grievance. While Garrish was
advised that he could appeal this decision under Article 33 of the UAW Constitution, he (and other
Plaintiffs) still did not believe that the UAW would properly consider an appeal.
        After many other instances of procedural wrangling and several years after the grievances
were originally filed, the district court granted Defendants’ motion for summary judgment. It
concluded that Plaintiffs’ claims  were barred by the statute of limitations because they failed to
timely file their complaint.4
                                                  DISCUSSION
       We review the district court’s grant of summary judgment de novo. Lautermilch v. Findlay
City Sch., 314 F.3d 271, 274 (6th Cir. 2003). “Summary judgment is appropriate if there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.;
see Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). All
evidence is viewed in the light most favorable to Plaintiffs. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
        “A hybrid § 301 suit implicates the interrelationship among a union member, his union, and
his employer.” Vencl v. Int’l Union of Operating Eng’rs, Local 18, 137 F.3d 420, 424 (6th Cir.
1998) (citation omitted). Jurisdiction arises under § 301 because Plaintiffs alleged breaches of the
NCBA. See id. “To recover against a union under § 301, the union member must prove both (1)
that the employer breached the collective bargaining agreement and (2) that the union breached its
duty of fair representation.” Id. (citation omitted). If both prongs are not satisfied, Plaintiffs cannot
succeed against any Defendant. See id.; Bagsby v. Lewis Bros. of Tennessee, 820 F.2d 799, 801 (6th
Cir. 1987).
      A six-month statute of limitations applies to Plaintiffs’ hybrid § 301 action. See Martin v.
Lake County Sewer Co., 269 F.3d 673, 677 (6th Cir. 2001) (citing DelCostello v. Int’l Bhd. of

         4
          The district court had previously construed Plaintiffs’ complaint as a hybrid § 301 cause of action. See
Garrish, 133 F. Supp. 2d at 963-64. Moreover, Plaintiffs had also been denied class certification. See Garrish v. Int’l
Union, UAW, 149 F. Supp. 2d 326, 333 (E.D. Mich. 2001).
No. 03-2468            Garrish, et al. v. Int’l Union, UAW, et al.                                Page 4


Teamsters, 462 U.S. 151, 169 (1983)). “Such a claim accrues when an employee discovers, or
should have discovered with exercise of due diligence, acts giving rise to the cause of action.”
Wilson v. Int’l Bhd. of Teamsters, 83 F.3d 747, 757 (6th Cir. 1996). While “[T]he determination of
the accrual date is an objective one: ‘the asserted actual knowledge of the plaintiffs is not
determinative if they did not act as reasonable persons and, in effect, closed their eyes to evident and
objective facts concerning the accrual of their right to sue.’” See Noble v. Chrysler Motors Corp.,
Jeep Div., 32 F.3d 997, 1000 (6th Cir. 1994). Plaintiffs are “not required to sue on a hybrid claim
until . . . [they] reasonably should know that the union has abandoned [their] claim.” Wilson, 83
F.3d at 757. Plaintiffs filed their complaint on August 7, 2000; accordingly, it was timely filed only
if their claims accrued after February 7, 2000. If Plaintiffs’ claims accrued before then, their
complaint is time-barred unless they did not discover, or could not have discovered through due
diligence, that Defendants’ acts causing the alleged injuries occurred prior to February 7, 2000.
        Plaintiffs allege two counts in their hybrid § 301 claim: (1) GMC breached the NCBA by
hiring Gordon Campbell and Fante and the union breached the duty of fair representation by
protracting the strike until GMC agreed to hire them; and (2) GMC’s purported payoffs to Local 594
officials were connected to the union’s extension of the strike.
        1. The hiring of Gordon Campbell and Todd Fante.
         Plaintiffs first argue that their timely pursuit of internal union remedies (beginning with their
August 1997 grievances) capable of affording them some relief tolled the statute of limitations.
Before bringing a hybrid § 301 claim, an employee “first must exhaust any grievance . . . remedies
provided in the collective-bargaining agreement.” Robinson v. Cent. Brass Mfg. Co., 987 F.2d 1235,
1239 (6th Cir. 1993). But the statute of limitations period begins to run when a plaintiff knows that
the union has withdrawn his grievance. See Noble, 32 F.3d at 1001-02. In Robinson, 987 F.2d at
1239, this court held that the statute of limitations is not tolled during the time an employee pursues
internal union remedies that are completely futile. Instead, “in order for the statute of limitations
to be tolled, the internal union appeal must be able to afford [Plaintiffs] some relief from
[Defendants]. . . . [W]hether to toll the limitations period is a question within the discretion of the
district court.” Id. “We review a district court’s decision regarding equitable tolling for an abuse
of discretion.” Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (citation omitted). If
Plaintiffs attempted in good faith to exhaust their internal union remedies before filing suit in federal
district court, the statute of limitations may be tolled. See Dunleavy v. Local 1617, United
Steelworkers of Am., 814 F.2d 1087, 1090-91 (6th Cir. 1987).
         The record is saturated with evidence that Plaintiffs discovered, or should have discovered
through due diligence, Defendants’ acts giving rise to this action well before February 7, 2000. For
instance, Garrish testified in his September 1997 deposition that Donny Douglas admitted that he
delayed the strike’s settlement so that Gordon Campbell and Fante would be hired. Garrish also
testified that Local 594 kept its members on strike so that these two individuals would be hired.
Next, Plaintiffs were aware of a leaflet describing how Douglas maintained that he prolonged the
strike to get Gordon Campbell hired. Further, in June 1999, Plaintiff Janice Austin filed an unfair
labor practice charge against the union with the National Labor Relations Board. She claimed that
Local 594 prolonged the strike so that GMC would hire the union officials’ relatives. Plaintiffs filed
grievances as to these same employees in August 1997 and acknowledged that they knew the facts
surrounding these individuals within days of their hiring date. Garrish expressly testified that “[i]t
was always the same thing [during the 1997 strike and negotiations]: the kids and money.”
Plaintiffs nevertheless contend that the statute of limitations was tolled.
No. 03-2468                   Garrish, et al. v. Int’l Union, UAW, et al.                                        Page 5


        Plaintiffs appealed their August 1997 grievances through February 2002.5 According to
Plaintiffs, all these grievances tolled the statute of limitations since they would provide “some
relief.” Despite this argument, however, Plaintiffs have repeatedly conceded that any appeal was
futile. For instance, Count V of Plaintiffs’ first amended complaint is labeled “USE OF
DEFENDANT UAW’S APPEAL PROCEDURE WOULD BE FUTILE.” Garrish testified that he
knew early on that the union would not process his grievance and it would be futile to do so, and he
was not surprised and “could have gambled everything” that the UAW would find            his appeal
untimely because of fraud and collusion between various union and GMC officials.6
         The district court did not abuse its discretion in determining that the statute of limitations
was not tolled because Plaintiffs knew long before February 7, 2000 that all appeals would be
completely futile. Robinson clearly applies and Plaintiffs’ unfounded assertion that the statute of
limitations should have been tolled “[s]ince there was some possibility of relief . . . in the internal
union remedy” is not supported by the record. While Article 33 of the UAW constitution provides
that “[i]t shall be the duty of any individual . . . to exhaust fully the individual[’s] remedy and all
appeals under this Constitution and the rules of this Union before going to a civil court . . . for
redress[,]” Plaintiffs’ grievances only pertained to Gordon Campbell and Fante and did not address
the underlying purpose of the lawsuit – the recovery of monetary damages. Plaintiffs’ first amended
complaint reveals that the NCBA does not provide for the 60 days lost wages sought and “Plaintiffs
have no administrative remedies in which to recover their 60 days lost wages due to the collusion
and fraud of all Defendants on the violation of the [NCBA] regarding [Gordon] Campbell and Fante,7
and due to the collusion of fraud of Defendants . . . in wrongful payments to union officials.”
Plaintiffs’ grievances that Gordon Campbell and Fante be removed because they were unqualified
for skilled trade positions are completely dissimilar to the “heart” of Plaintiffs’ action that the union
improperly prolonged the strike in order to secure employment for these individuals and payments
for Union officials, and that GMC violated the NCBA by acquiescing in these demands in order to
settle the strike.
        Although Plaintiffs also sought the removal of Gordon Campbell and Fante through this
lawsuit, they nonetheless asserted that the other issues could not be resolved through internal union
procedures. While the removal of Gordon Campbell and Fante would constitute “some relief,”
Plaintiffs have made it clear that their pursuit of internal union appeals would have been completely
futile. See Robinson, 987 F.2d at 1242 (“Tolling the statute of limitations while a claimant pursues
completely futile internal union remedies does not serve the federal interests discussed in
DelCostello and Clayton [v. Int’l Union, UAW, 451 U.S. 679 (1981)] and is unfair to the
defendant.”). Moreover, Plaintiffs certainly cannot raise a genuine issue of material fact by relying
on evidence that purportedly tolls the statute of limitations yet simultaneously acknowledge it is not

           5
               These grievances only concerned the hiring of Gordon Campbell and Fante and did not address the purported
payoffs.
           6
           Garrish subsequently tried to recant his earlier deposition testimony in an affidavit wherein he averred that
he “was wrong in [his] belief in 1999 that [his] appeal would not be properly pursued” and explained why he originally
thought the UAW would not properly process his appeal. This cannot be used in considering whether summary judgment
was proper. See Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991) (“[I]t is well settled that a plaintiff may
not create a factual issue for the purpose of defeating a motion for summary judgment by filing an affidavit contradicting
a statement the plaintiff made in a prior deposition.”).
           7
           In a subsequent affidavit, Garrish again tried to avoid his prior deposition testimony by claiming that he did
not learn an appeal would be futile until August 2000, when his appeal was assigned to UAW Vice-President Richard
Shoemaker. According to Garrish, Shoemaker would not properly consider Plaintiffs’ appeal “since his son was another
individual who was hired by GM[C] as a result of the 1997 strike” at the Facility. However, this use of an affidavit is
unacceptable, see Jones, 939 F.2d at 385, and there is undisputable evidence that Plaintiffs knew long before February
7, 2000 that any appeal would be futile.
No. 03-2468               Garrish, et al. v. Int’l Union, UAW, et al.                                         Page 6


even included in the record. Because Plaintiffs knew    that no relief was available through an internal
process, the statute of limitations was not tolled.8 See Darden v. Local 247, Int’l Bhd. of Teamsters,
103 F.3d 129, 1996 WL 692095, at *2 (6th Cir. 1996) (table) (per curiam).
         Plaintiffs sought different remedies for different violations: internal union appeals to address
the wrongful hire of Gordon Campbell and Fante and a federal civil suit to address the wrongful
strike prolongation for lost wages and improper payoffs to union officials. The statute of limitations
began to run no later than February 3, 1999, when Plaintiffs’ grievances were withdrawn. See
Noble, 32 F.3d at 1001. Plaintiffs’ representations in their first amended complaint and deposition
testimony, as well as the disconnect between the internal grievance appeals and this lawsuit, reveal
that the district court correctly refused to toll the statute of limitations. Therefore, because Plaintiffs
discovered the grounds for their hybrid § 301 action before February 7, 2000, their claim is barred
by the six-month statute of limitations.
         2. The alleged payoff of union officials.
        Plaintiffs also argue that a question of fact exists as to when they discovered that the strike
was prolonged so GMC would pay off union officials. Garrish insists that he did not learn this until
mid-2000, when Local 594 Committeeman Mike Fitch told him that all union committeemen
received money at the end of the strike. Despite these declarations in Garrish’s subsequent affidavit,
the record discloses that he knew in July 1997 that two union officials (Jay Campbell and William
Coffey) had “receiv[ed] substantial money grievance settlements.” Garrish attempts to resolve these
discrepancies by contending that he did not learn all committeemen received $5,000 payoffs until
July or August 2000.
        Summary judgment was appropriate. Allegations of payoffs and strike prolongation began
immediately after the 1997 strike ended. Plaintiff Gene Austin, the publisher of union opposition
newsletter The Challenger, informed fellow union members that he “could no longer sit back and
watch as our members were being used as pawns by the officers at the hall to negotiate large
settlements for themselves and get family members hired.” Gene Austin also agreed during his
deposition testimony that he learned in September 1997 that Local 594’s negotiators had abused
their bargaining power to get large payments for Jay Campbell and William Coffey. Plaintiff Gerald
McDonald testified that an inference arose that these payments were improper and unfair because
Jay Campbell and Coffey vigorously defended their receipt of these large payments at the strike’s
conclusion. Furthermore, Garrish testified that, beginning in late 1997, he was familiar with
numerous leaflets questioning the validity of these payments and the specific amounts some union
officials received. Garrish conceded that he was exposed to literature in 1999 that union officials
“absus[ed] the bargaining table” to “get payoffs for union officials and jobs for unqualified
relatives[.]”
        The voluminous record is replete with examples of Plaintiffs’ knowledge of these alleged
payoffs years before February 7, 2000. Illustrations include the following: Gene Austin wrote that
“[w]hat we do know as a Membership is that some of the top negotiators during our 87 day strike
have filled their pockets[.]”; leaflets advised “LEARN HOW TO BARGAIN FOR PERSONAL
GAIN, GET YOUR KIDS A GOOD JOB, AND A POCKET FULL OF MONEY TO BOOT.
LEARN HOW ABUSE OF POWER CAN WORK FOR YOU AND YOUR FRIENDS[.]
INSTRUCTOR JAY ‘I’M WORTH MORE’ CAMPBELL.”; “IT WAS NOT A STRIKE IT WAS
A PAYOFF,” “Bill Campbell . . . got $60,000. Jay Campbell . . . got $40,000 and his kid an illegal


         8
          Despite Plaintiffs’ contention otherwise, we are not permitted to find “that the Robinson rule is unworkable”
and “abandon” it. See Beck v. Haik, 377 F.3d 624, 635 (6th Cir. 2004) (A “panel of this [c]ourt cannot overrule the
decision of another panel.”).
No. 03-2468               Garrish, et al. v. Int’l Union, UAW, et al.                                            Page 7


job on skilled trades”; and Garrish testified that “[i]t was always the same thing: the kids and
money.” All of this evidence was available at least by 2000.
        Moreover, there is no distinction between the terms “some” and “all” so as to create a
genuine issue of material fact. Regardless of any $5,000 payments to Fitch and “all” other
committeemen, Plaintiffs knew of these payoffs to other high-level union officials as early as 1997.
See Ratkosky v. United Transp. Union, 843 F.2d 869, 873-74 (6th Cir. 1988) (six-month statute of
limitations began to run when plaintiffs “knew or should have known at that time that [the union]
was unwilling to renegotiate the contract”). It is immaterial whether Garrish allegedly learned in
mid-2000 that all committeemen received a payoff; rather, it is paramount that he (and the other
Plaintiffs) knew in 1997 that the strike had been prolonged so high-level union officials would
receive payoffs. See Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102
F.3d 1173, 1178-79 (11th Cir. 1997) (first reported series of problems starts statute of limitations
running); Allen v. United Food & Commercial Workers Int’l Union, 43 F.3d 424, 427-28 (9th Cir.
1994) (plaintiffs knew or should have known of union misconduct when they learned their benefits
were effectively eliminated). Fitch’s purported confession to Garrish9 that “all” committeemen
received payoffs only supplemented Plaintiffs’ collective knowledge. This claim is also time-
barred.
         3. Plaintiffs failed to state a cause of action under § 301.
        As an additional rationale for affirmance, two of Plaintiffs’ allegations may not be redressed
pursuant to § 301. See Jasany v. United States Postal Serv., 755 F.2d 1244, 1248 n.1 (6th Cir. 1985)
(alternative grounds can support district court judgment). Neither the prolongation of a strike nor
the payoffs constitutes a cause of action in the instant appeal – GMC did not breach the NCBA and
the union did not breach its duty of fair representation. During oral argument Plaintiffs’ counsel
even conceded that there was no case on point providing the relief Plaintiffs seek. Although the
hiring of unqualified employees is a viable claim under § 301, the only available remedy here would
be that which Plaintiffs sought in their grievances. See Hines v. Anchor Motor Freight, Inc.,
424 U.S. 554, 570-71 (1976). However, this claim is time-barred.
         AFFIRMED.




         9
           Garrish’s claim that he first learned of the alleged payoffs in mid-2000 is contradicted by Plaintiffs’ first
amended complaint, wherein it is asserted that the “first time Plaintiffs became aware of the possibility that Local 594’s
officials were obtaining money from GM[C] to which they were not entitled was in the report of the President of Local
594 in the local’s newspaper, the ‘Champ,’ in late February 2000” (emphasis added).
