UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLEN LEE,
Plaintiff-Appellant,

v.
                                                                       No. 98-2345
CONSOLIDATION COAL COMPANY;
UNITED MINE WORKERS OF AMERICA,
DISTRICT 31,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Robert Earl Maxwell, Senior District Judge.
(CA-98-51-1)

Submitted: January 29, 1999

Decided: April 27, 1999

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Brent E. Beveridge, BEVERIDGE LAW OFFICES, Fairmont, West
Virginia, for Appellant. Robert M. Steptoe, Jr., Vanessa L. Goddard,
STEPTOE & JOHNSON, Clarksburg, West Virginia; Robert M.
Vukas, CONSOL, INC., Pittsburgh, Pennsylvania; Charles F. Don-
nelly, Molly A. Kettler, DONNELLY, CARBONE & KETTLER,
Charleston, West Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Allen Lee appeals from a district court order granting summary
judgment to Consolidation Coal Company ("employer") and the
United Mine Workers of America, District 31 ("Union"), in a hybrid
breach of contract/breach of the duty of fair representation action. Lee
began working for employer at one of its West Virginia coal mines
in 1974, but was laid off in 1983. Although employer recalled its laid
off employees to its Robinson Run Mine in April 1990, it did not
recall Lee. In late July or early August 1996, Lee learned from a
Union representative that he should have been recalled to the Robin-
son Run Mine in 1990. Lee then asked the Union to assert his rights
to immediate employment at the Robinson Run Mine, as well as back
pay dating to April 1990.

In September 1996, a Union representative informed Lee that the
Union and employer had entered into an agreement granting Lee
seniority at the Robinson Run Mine dating back to April 15, 1990, but
waiving his claim for back pay. In late September, Lee received the
written version of the agreement and immediately contacted the
Union to express his displeasure with its waiver of his back pay
claim. He requested that the Union file a grievance to assert his right
to back pay, but the union responded that it would not rescind the
agreement or file a grievance, and told Lee that"a deal was a deal."

Lee then obtained an attorney, who wrote the Union and demanded
that it pursue a grievance on Lee's behalf. On December 11, 1996,
Lee filed a grievance with the concurrence of a member of the local
mine committee. On September 19, 1997, the Union and employer
settled the grievance, agreeing, as in September 1996, to grant Lee
seniority rights but no back pay. Lee then filed this action in West
Virginia Circuit Court on December 19, 1997, and employer and the
Union filed motions to remove to federal court in April 1998. The dis-

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trict court granted summary judgment to both Defendants on the
ground that this action was barred by the applicable statute of limita-
tions.

"Hybrid" suits brought against employers for alleged breaches of
a collective bargaining agreement and against unions for breach of the
duty of fair representation are governed by the six-month statute of
limitations set forth in Section 10(b) of the National Labor Relations
Act. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151,
165 (1983). The question of when a federal cause of action "accrues"
and the related question of whether it is "tolled" by subsequent con-
duct or events are federal questions determined by federal law. The
general rule is that a cause of action accrues when the plaintiff knows
or should know that a violation of his rights has occurred. See Cox
v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). In hybrid suits, courts
have stated that the claim arises when the plaintiff could first success-
fully maintain a suit based on that cause of action, see Santos v. Dis-
trict Council of New York City & Vicinity of United Bhd. of
Carpenters & Joiners of Am., AFL-CIO, 619 F.2d 963, 968-69 (2d
Cir. 1980), or when the claimant discovers, or in the exercise of rea-
sonable diligence should have discovered, the acts constituting the
alleged violation. See Metz v. Tootsie Roll Indus., Inc., 715 F.2d 299,
304 (7th Cir. 1983).

Lee's complaint alleged that employer breached the collective bar-
gaining agreement when it failed to recall him to the Robinson Run
Mine in 1990, and that the Union breached its duty of fair representa-
tion when it entered into a settlement that failed to protect his rights.
There is no dispute that Lee was aware of the employer's action, and
of the Union's first settlement with employer, in September 1996. Lee
contends, however, that his cause of action against the Union did not
accrue until he learned of the September 1997 settlement, because
prior to that time he could not have successfully pursued the action.
Lee argues that before September 1997, the Union had acceded to his
demands, and the grievance procedure was still pending. An
employee must exhaust grievance procedures provided by the applica-
ble collective bargaining agreement prior to filing suit. Clayton v.
UAW, 451 U.S. 679, 689 (1981).

In this case, however, the applicable collective bargaining agree-
ment provides that grievances must be brought within ten days of the

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date the aggrieved party becomes aware of the grievance, and that set-
tlements reached at any step of the grievance procedure are final and
binding. The district court correctly found that under the law Lee was
charged with knowledge of the terms of the collective bargaining
agreement, including the applicable time limits for pursuing a griev-
ance. See Hardesty v. Essex Group, Inc., 550 F. Supp. 752, 760 (D.
Ind. 1982). Hence, we agree with the district court's conclusion that
Lee should have known after the first settlement that further pursuit
of this matter through internal procedures was futile. If his requests
for seniority and back pay constituted a "grievance" under the govern-
ing contract, then the first settlement was final. If his demands did not
constitute a grievance, then he failed to file a grievance within the
applicable ten-day period.

Moreover, even a reasonable belief that the Union could have prop-
erly continued to pursue the matter would not have prevented Lee's
cause of action from accruing. Lee claims that the Union's unautho-
rized settlement of his dispute without acquiring his right to back pay
breached the Union's duty of fair representation. Such action occurred
in September 1996. Any subsequent action by the Union on Lee's
behalf might have remedied this alleged breach, but it could not pre-
vent a breach that had already occurred. Nor could it render Lee
unaware of the breach. See Simmons v. Howard Univ., 157 F.3d 914,
916-17 (D.C. Cir. 1998).

Further, the record discloses that it was not the entity being sued
in this case -- Union District 31 -- that endorsed Lee's December
grievance, but a member of the local union mine committee. The
actions of a local union are not automatically imputed to a district
union, particularly if the local union's action was contrary to the pro-
visions of the governing collective bargaining agreement. See Carbon
Fuel Co. v. United Mine Workers of Am., 444 U.S. 212 (1979). Lee
provides no authority for holding that the local committee's actions
should be imputed to the district union in this case. Hence, his claim
that the union acceded to his demands by concurring in the December
1996 grievance is unsupported. We therefore conclude that Lee's
cause of action accrued around late September 1996, because he
could have successfully maintained an action at that time.

Lee further argues, however, that the Union should not be permit-
ted to rely on the statute of limitations in this case under principles

                     4
of equitable tolling or equitable estoppel. Equitable tolling applies
where the defendant wrongfully deceived or misled the plaintiff in
order to conceal the existence of a cause of action. English v. Pabst
Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). Equitable estoppel
applies where, despite the plaintiff's knowledge of the facts, the
defendant engages in intentional misconduct to cause the plaintiff to
miss the filing deadline. Id. Because Lee does not even allege any
kind of deliberate deceitful conduct on the part of the Defendants, we
find these equitable doctrines inapplicable to this case.

Lee finally contends that the district court abused its discretion by
denying his request for a discovery continuance under Federal Rule
of Civil Procedure 56(f). A party moving for continuance of discov-
ery must make the request prior to the district court's ruling on the
summary judgment motion, and demonstrate how the requested dis-
covery pertains to the pending motion. United States v. Bloom, 112
F.3d 200, 205 n.17 (5th Cir. 1997). In this case, Lee did not make a
Rule 56(f) request until oral argument on the Defendants' summary
judgment motion. Moreover, the basis for the motion was limited to
the professed need to investigate the authority of local union commit-
tee members to act as agents of larger union entities. Only after the
district court's summary judgment ruling did counsel provide addi-
tional reasons for granting a continuance.

The issues surrounding the authority of the local union, however,
were more legal than fact based. Accordingly, further discovery
would likely have shed little if any light on the subject. The other
bases asserted for Lee's motion were untimely presented, and in any
event primarily raised issues of law or contractual interpretation
rather than factual issues. Lee also failed to explain in his motion how
further discovery would assist the resolution of these issues. We
therefore find that the district court did not abuse its discretion by
denying Lee's Rule 56(f) motion.

The order of the district court granting summary judgment is there-
fore affirmed. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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