                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3846
                        ___________________________

Mark R. Becker; Richard G. Adams; Liphrino Alcenat; Robert R. Auren; David R.
   Balderas; Carl J. Bartell; Greg H. Barthol; Albert G. Bauer; Jeffery R. Begin;
 Patrick K. Belair; Matthew A. Benson; David J. Boas; William F. Boeck; Paul C.
 Bollmann; Rick A. Braatz; Thomas E. Brooks; Michael P. Burback; Matthew D.
     Calmer; Richard O. Charnell; Douglas S. Coffey; John D. Crist; David W.
     Danneker; Donald R. Deiman; James A. Eggert; Brian C. Engle; Raymond
 Fellows; Ronald C. Fideldy; Michael Figgins; Thomas J. Foster; Doug R. Franco;
 Daniel L. Freiling; Ruben A. Fuentes; Michael L. Gatlin; Terry J. Glynn; Jeffrey
   D. Hamlin; Mark A. Hansen; David A. Hehling; Todd M. Hellevik; Dennis L.
 Helling; Michael E. Hiber; John P. Hiniker; Eric D. Holscher; Daniel D. Howells;
 Ronald D. Hoyhtya; Terry P. Huettl; Dean M. Huhta; Anthony J. Jansen; Paul F.
      Jansen; Anthony J. Jasseh; Xavier U. Jones; Thomas R. Kasper; Jeff A.
 Klemenhagen; Chris W. Klingelhoets; Brian P. Klotz; Shawn L. Koehler; Steven
     E. Koetz; John P. Koralesky; James Krager; Michael G. Kremer; James C.
 Kroschel; Edin N. Kucanin; Scott A. Larson; Timothy A. Locker; Jason C. Long;
Juan P. Macias; Craig A. Manderfeld; Jeffrey T. Melson; Jeffrey Michael; Keith F.
 Miller; Jeffrey P. Olson; Mark E. Perron; James C. Radford; James C. Rodriguez;
  Jesse Rodriguez; James A. Roy; Terrance P. Ryan; Charles A. Sadler; Jeffrey H.
  Sampson; Patrick J. Samuelson; William A. Satchel; Dale E. Schipp; Dennis E.
 Schroeder; Gary D. Sendek; Ron W. Snyder; Michael T. Sporcic; Karimu Surajc;
    Kevin C. Thompson; Rodney G. Umbriet; Joseph R. Vandenheuvel; Nick E.
    Wahlgren; Charles E. Walker; Wayne K. Warnke; Ben C. Webber; David A.
                    Westlund; Rick A. Wilbur; Charles Young, Jr.

                      lllllllllllllllllllll Plaintiffs - Appellants

                                           v.

               International Brotherhood of Teamsters Local 120

                      lllllllllllllllllllll Defendant - Appellee
                                  ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                           Submitted: October 24, 2013
                             Filed: February 3, 2014
                                 ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      Mark Becker and other union members (Becker or appellants) sued their former
employer, US Foodservice, Inc. (US Foods), and International Brotherhood of
Teamsters Local 120 (Union) in a hybrid action under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, for breach of duty of fair representation.
The district court1 dismissed the complaint against US Foods for failure to state a
claim under Fed. R. Civ. P. 12(b)(6) and later granted the Union’s motion for
summary judgment because Becker’s claim was time-barred. Becker appeals the
grant of summary judgment only. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.

I.     BACKGROUND
       In August 2008, US Foods announced it would close its Eagan, Minnesota,
facility, where appellants were employed. A month later, the Union filed a grievance
against US Foods seeking to bar the closure. The Union and US Foods began
negotiating concerning the closure of the Eagan facility. The Union ostensibly

      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.

                                         -2-
attempted to negotiate an agreement whereby the Eagan employees would transfer
without loss of seniority or pension to another facility in Plymouth, Minnesota.

       On November 3, 2008, the Union and US Foods reached a tentative “Facility
Closure Agreement” to settle the grievance. The tentative agreement was contingent
upon approval by both the Central States Pension Plan, which covered the employees
of the Eagan facility, and the Minneapolis Food Distributing Industry Pension Plan
(MFPP), which covered the employees of the Plymouth facility. The six trustees of
the MFPP, three of whom were also Union officials, met by telephone two days later
and rejected the Facility Closure Agreement. The next day, the Union wrote to US
Foods to inform it of the rejection. With no agreement, any employee moving from
Eagan to Plymouth would lose all seniority and pension benefits and be treated as a
new hire.

       On November 12, 2008, US Foods informed the Eagan employees the MFPP
trustees had rejected the tentative Facility Closure Agreement. A few days later, US
Foods told the Eagan employees they could transfer to the Plymouth facility as new
hires. On December 9, 2008, a number of the displaced Eagan employees, including
Becker, filed an unfair labor practices charge against the Union with the National
Labor Relations Board (NLRB), alleging the Union “has failed to fairly represent
[Eagan employees] by engaging in negotiations with [US Foods] designed to serve
interests other than the represented employees.” Four days later, US Foods fired 146
of the Eagan employees. On February 10, 2009, the NLRB dismissed the unfair labor
practices charge against the Union, stating, “Based on our investigation, there is
insufficient evidence of a violation.” Becker’s appeal of the NLRB dismissal was
denied.

       Early in 2009, appellants hired legal counsel to “insist[] that the union pursue
a grievance and arbitration on our behalf.” The Union agreed to pursue the Eagan
employees’ claims against US Foods “through the grievance-arbitration provision of

                                         -3-
the collective bargaining agreement.” After five days of hearings, on July 9, 2010,
the arbitrator issued a decision and award denying the Union’s grievance against US
Foods. Less than six months later, on December 30, 2010, many of the former Eagan
employees filed suit against US Foods and the Union in Minnesota state court. US
Foods removed the action to federal district court.

       On May 16, 2011, the district court granted US Foods’ motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), noting there were “no allegations . . . of any
wrongdoing” by US Foods in Becker’s complaint. On November 1, 2012, the district
court granted the Union’s motion for summary judgment, stating Becker’s claim
against the Union accrued on December 9, 2008, the day he filed the unfair labor
practices charge against the Union with the NLRB, and the present action, filed in
state court on December 30, 2010, was time-barred by the six-month statute of
limitations. Becker timely appealed the summary judgment.

II.   DISCUSSION
      A.    Standard of Review
      “We review de novo the grant of a motion for summary judgment, viewing all
evidence and making all reasonable inferences in the light most favorable to the
nonmoving party.” Inechien v. Nichols Aluminum, LLC, 728 F.3d 816, 819 (8th Cir.
2013).

       B.    Commencement of Limitations Period
       In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983),
the Supreme Court explained § 10(b) of the National Labor Relations Act, codified
at 29 U.S.C. § 160(b), is “the applicable statute of limitations governing the suit” by
an employee alleging a union breached its duty of fair representation in a “hybrid




                                         -4-
§ 301/fair representation claim.” Id. at 154, 155, 164-65. See 29 U.S.C. § 185.2
Section 10(b) calls for a limitations period of six months. See 29 U.S.C. § 160(b).

       The parties dispute when Becker’s claim accrued. Becker contends the facts of
this case render it one of first impression in our circuit, and persuasive Third Circuit
case law supports Becker’s contention that his claim accrued on the date of the
arbitration award, July 9, 2010, such that his complaint filed on December 30, 2010,
was within the six-month limitations period. The Union argues our precedent
establishes Becker’s claim accrued no later than December 9, 2008, when Becker
filed a charge against the Union with the NLRB, rendering his complaint filed two
years later time-barred.

               1.    Eighth Circuit Precedent
       “Although the DelCostello Court indicated that section 10(b) requires filing of
a duty of fair representation claim within six months of the action’s accrual, it did not
provide guidance in determining when such a claim accrues.” Skyberg v. United
Food & Commercial Workers Int’l Union, 5 F.3d 297, 301 (8th Cir. 1993). “Courts
have generally held that the six-month limitations period begins to run when the
employee knows or reasonably should know that the union has breached its duty of
fair representation.” Id.; see also Schuver v. MidAmerican Energy Co., 154 F.3d 795,
800 (8th Cir. 1998); Santos v. Dist. Council of United Bhd. of Carpenters, 619 F.2d
963, 968-69 (2d Cir. 1980). “The statute of limitations begins running when the
employee ‘should reasonably have known of the union’s alleged breach.’” Scott v.
UAW Local 879, 242 F.3d 837, 839 (8th Cir. 2001) (quoting Evans v. Nw. Airlines,
Inc., 29 F.3d 438, 441 (8th Cir. 1994)). Becker certainly knew of the Union’s alleged
breach on December 9, 2008, when he filed the NLRB charge.

      2
       Although Becker’s complaint states his cause of action arises under 29 U.S.C.
§ 159, he now informs this court his cause of action arises “under § 301 of the Labor
Relations Management Act, 29 U.S.C. § 185, which formed the jurisdictional basis
before the Trial Court.” We address Becker’s claim under 29 U.S.C. § 185.

                                          -5-
               2.     Third Circuit Authority
        “‘It is a cardinal rule in our circuit that one panel is bound by the decision of
a prior panel.’” Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc)
(quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (per curiam)). In the
face of our formidable precedent, Becker asserts “the Eighth Circuit has never passed
upon the precise issue raised in this case”—tolling the limitations period during a
related arbitration proceeding. Becker urges us to consider and adopt Childs v.
Pennsylvania Federation Brotherhood of Maintenance Way Employees, 831 F.2d 429
(3d Cir. 1987), where a railroad employee sued his union for breach of its duty of fair
representation and sued Amtrak, his employer, for breach of a collective bargaining
agreement. Id. at 430. The Childs court had to determine the date of accrual of
Childs’ claim. See id. Childs’ problem with the union had to do with the arbitration
proceedings. See id. First, Childs objected to the union’s decision not to submit
Childs’ grievance against Amtrak to the National Railroad Adjustment Board
(NRAB). See id. at 431. After Childs retained counsel, the union reversed course
and decided to defend Childs before the NRAB. See id. But during the course of
negotiations prior to the arbitration proceedings, the union sent Childs a letter stating
Amtrak would not reopen Childs’ file to add new evidence, and the union had agreed
to close Childs’ file, which would, in effect, be fatal to Childs’ success with his
grievance. See id. at 432. As predicted by the union, the NRAB denied Childs’
grievance. See id.

       Childs sued the union for failing to represent him fairly in the proceedings
before the NRAB. See id. The district court dismissed the claim as time-barred,
stating the six-month limitations period began to run on the date of the union’s letter,
when Childs knew his file would not be reopened and no new evidence could be
submitted to the NRAB. See id. at 432-33. Childs appealed to the Third Circuit,
arguing the claim accrual date should instead be the date of the NRAB’s final
decision. See id. at 434. The Third Circuit agreed with Childs. See id.



                                          -6-
      First, it seems inefficient and unwise to compel an employee to sue his
      union in federal court while the union continues, in good faith, to pursue
      the employee’s claims and attempts to remedy any past breach of its
      [duty of fair representation]. If the union can indeed remedy the cause
      of the employee’s dissatisfaction, it should be allowed to do so, thus
      obviating federal judicial involvement.

Id. Childs’ major complaint against the union was that the union breached its duty
of fairly representing him as to the arbitration proceeding because, while the
arbitration proceeding was ongoing, the union could have cured the breach. See id.
at 432.

       Yet, Becker’s complaint against the Union involves the Union’s handling of
the Facility Closure Agreement. The grievance decided by the arbitrator involved the
collective bargaining agreement between the Union and US Foods. The Third
Circuit’s holding in Childs simply does not apply to Becker’s case: “We hold that
where the union continued to represent the employee before the NRAB, and tried to
remedy the breach of its duty of fair representation, the employee’s action against the
union did not accrue until the [NRAB] rejected the employee’s claim.” Id. at 430
(emphasis added). In the present case, the Union was not trying “to remedy the
breach of its duty of fair representation” in the negotiations regarding the Facility
Closure Agreement as a part of the arbitration proceedings considering the collective
bargaining agreement.

      Becker asks this court to connect (1) his grievance with the Union, and (2) the
Union’s grievance with US Foods, so as to extend the time in which he could file a
complaint against the Union.3 The arbitration award denying the Union’s grievance
against US Foods addressed two issues only:


      3
      The two grievances are connected factually in the sense that both center
around the loss of appellants’ jobs when US Foods closed the Eagan facility.

                                         -7-
      1. Did [US Foods] violate the Eagan Collective Bargaining Agreement
      when it closed its facility in Eagan, Minnesota and transferred the work
      formerly performed in that facility to its plant in Plymouth, Minnesota?

      2. If so, what is the remedy?

In fact, the arbitrator declared,

      [US Foods] has strongly suggested that Union officers acted in bad faith
      toward its own members by not supporting the [Facility] Closure
      Agreement while acting in their capacities as trustees of the [MFPP].
      Since it was not necessary to a decision on the merits of this case, the
      Arbitrator did not make a specific Finding of Fact on this point.

Regardless of the outcome of the arbitration, any grievance Becker had with the
Union concerning the Union’s actions negotiating the Facility Closure Agreement
would have remained unresolved by the arbitration.

      Becker has not established Childs is apposite or his case is one of first
impression in our circuit. We must conclude Becker’s claim accrued on December
9, 2008, when Becker “‘should reasonably have known of the union’s alleged
breach.’” Scott, 242 F.3d at 839 (quoting Evans, 29 F.3d at 441).4


      4
        In a footnote, the Union suggests that without allegations of breach of a
collective bargaining agreement by US Foods, Becker cannot prevail in this hybrid
action. “Such a suit, as a formal matter, comprises two causes of action. The suit
against the employer rests on § 301, since the employee is alleging a breach of the
collective bargaining agreement.” DelCostello, 462 U.S. at 164. “The suit against
the union is one for breach of the union’s duty of fair representation, which is implied
under the scheme of the National Labor Relations Act.” Id. “‘To prevail against
either the company or the Union, . . . [employee-plaintiffs] must not only show that
their discharge was contrary to the contract but must also carry the burden of
demonstrating a breach of duty by the Union.’” Id. at 165 (alteration and omission
in original) (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67 (1981)

                                          -8-
III.   CONCLUSION
       For the foregoing reasons, we affirm.
                       ______________________________




(Stewart, J., concurring in the judgment)). “In order to prevail against either the
employer or union, the employee must prove both that the union breached its duty of
fair representation and that the employer breached the collective bargaining
agreement.” Scott, 242 F.3d at 839. Because we affirm on other grounds, we do not
address this issue.

                                        -9-
