UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, STEAMSHIP CLERKS
LOCAL 1624, AFL-CIO,
Plaintiff-Appellant,
                                                                   No. 95-2288
v.

VIRGINIA INTERNATIONAL TERMINALS,
INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-95-274)

Argued: March 6, 1996

Decided: April 17, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
YOUNG, Senior United States District Judge for the District of
Maryland, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Francis Hennessy, III, HARDEE & HEN-
NESSY, P.C., Chesapeake, Virginia, for Appellant. Thomas Michael
Lucas, VANDEVENTER, BLACK, MEREDITH & MARTIN, Nor-
folk, Virginia, for Appellee. ON BRIEF: SuAnne L. Hardee,
HARDEE & HENNESSY, P.C., Chesapeake, Virginia, for Appellant.
Mary C. Hamilton, VANDEVENTER, BLACK, MEREDITH &
MARTIN, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Steamship Clerks Local 1624 of the International Longshoremen's
Association filed the instant action against Virginia International Ter-
minals (VIT) on March 22, 1995, alleging that the company had vio-
lated the collective bargaining agreement between them when it
implemented a new policy concerning timekeepers' hours and wages.
A "contract board" established by the agreement, composed of an
equal number of Union and employer representatives, had ruled in
February 1994 that the policy did not violate the agreement. Even
though the contract board's decisions were to be regarded by the par-
ties as final and binding, the Union had challenged the policy on two
subsequent occasions; each time, the contract board had affirmed its
February 1994 decision.

On May 22, 1995, the United States District Court for the Eastern
District of Virginia held that the Union's claim was time-barred. The
Court found that, because Local 1624 had argued that a representative
of the parent union had not fairly represented the local union's inter-
ests at the February 1994 meeting of the contract board and that the
integrity of the board's decision had therefore been undermined, the
Union had advanced a hybrid Section 301-fair representation claim.1
_________________________________________________________________
1 An employee states a "hybrid claim" when he alleges both that his
employer breached the applicable collective bargaining agreement in vio-
lation of Section 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185(a), and that his union violated its duty of fair representation. See,
e.g., DelCostello v. International Bhd. of Teamsters , 462 U.S. 151, 163-
65 (1983).

                    2
The court therefore held that, under DelCostello v. International Bhd.
of Teamsters, 462 U.S. 151 (1983), the Union's complaint was gov-
erned by the six-month statute of limitations set out in Section 10(b)
of the National Labor Relations Act, 29 U.S.C. § 160(b). The District
Court then determined that the alleged breach of the agreement had
occurred in February 1994, when the contract board first approved the
timekeepers policy, and that the Union's March 1995 complaint had
therefore not been timely filed. We affirm.

I.

The Union has contended that the District Court should have
applied the Commonwealth of Virginia's five-year statute of limita-
tions for actions alleging a breach of a written contract, see Va. Code
Ann. § 8.01-246(2) (Michie 1992), rather than the six-month limita-
tions period prescribed by Section 10(b). We reject that argument,
having concluded that the Union stated a hybrid claim governed by
Section 10(b) and the Supreme Court's ruling in DelCostello.2

II.

In an effort to show that its complaint was filed within the six-
month limitations period, the Union has contended that "[t]he applica-
ble statute of limitations in this case accrues each and every time VIT
violates the Collective Bargaining Agreement." Because VIT's new
timekeepers policy was allegedly enforced as recently as April 22,
_________________________________________________________________
2 Contrary to the Union's suggestion, the fact that Local 1624 sued only
VIT--rather than both VIT and the parent union--is irrelevant. See, e.g.,
DelCostello, 462 U.S. at 165 (stating that, in a hybrid action, "[t]he
employee may, if he chooses, sue one defendant and not the other; but
the case he must prove is the same whether he sues one, the other, or
both"); Thomas v. LTV Corp., 39 F.3d 611, 621-22 (5th Cir. 1994) (hold-
ing that an employee had presented a hybrid claim--even though he had
not sued his union--because in order to prevail in his Section 301 suit
against his employer, he would have to show that his union failed fairly
to represent him in the grievance proceedings); McKee v. Transco Prod.,
Inc., 874 F.2d 83, 86-87 (2d Cir. 1989) (reaching the same conclusion).
The Union's contention that the Supreme Court rejected that basic princi-
ple of federal labor law in its decision in North Star Steel Co. v. Thomas,
___ U.S. ___, 115 S. Ct. 1927 (1995), is wholly without merit.

                    3
1995 (one month after the Union filed the instant action), the Union
believes that its action is not time-barred.

As support for its argument, the Union has cited the Sixth Circuit's
decision in Sevako v. Anchor Motor Freight, Inc. , 792 F.2d 570 (6th
Cir. 1986). In Sevako, employees had filed suit against both their
employer and their union, complaining that an annual bidding process
used by those entities to fill particular jobs violated the collective bar-
gaining agreement. Id. at 572. Though that bidding process had first
been used in 1973, the employees did not file suit until June 1983. Id.
at 572-73. The district court dismissed the action as untimely under
Section 10(b), but the Sixth Circuit reversed:

          We . . . hold that where the conduct challenged by
          employees/union members involves a continuing and alleg-
          edly improper practice that causes separate and recurring
          injuries to plaintiffs, the action is deemed to be in the nature
          of a continuing trespass. A separate cause of action accrued,
          therefore, each time defendants implemented the annual bid
          procedure.

Id. at 575 (internal quotation and citation omitted). The Union in the
instant case also has cited cases in which actionable, continuing viola-
tions were held to have occurred in other contexts. See, e.g.,
Bazemore v. Friday, 478 U.S. 385, 394-95 (1986) (wage discrimina-
tion in violation of Title VII of the Civil Rights Act of 1964);
Marshall v. Manville Sales Corp., 6 F.3d 229, 230-31 (4th Cir. 1993)
(employment discrimination in violation of the West Virginia Human
Rights Act); Williams v. Norfolk & Western Ry. Co., 530 F.2d 539,
542 (4th Cir. 1975) (racial discrimination in violation of Title VII and
42 U.S.C. § 1981).

VIT, of course, has disagreed. Regarding Sevako as an anomaly in
the area of federal labor law, VIT has pointed out that most of the
other cases cited by the Union are civil rights cases, and has argued
that extending the rule applied in those cases to cases like the one at
bar would frustrate "the federal policy favoring prompt and final reso-
lution of labor disputes," and would undermine reliance upon private
dispute-resolution mechanisms such as the contract board here. VIT
has further argued that, if the continuing-violation theory were

                     4
applied in the instant case, the Union could entirely circumvent the
statute of limitations by challenging the contract board's reading of
the agreement every six months.

The District Court "decline[d] to find that the repeated application
of the timekeeper policy by VIT constituted a continuing breach of
the collective bargaining agreement that tolled the statute of limita-
tions until April 22, 1995." The District Court stated that to rule to
the contrary would contravene "the underlying policy of federal labor
law of the `relatively rapid disposition of labor disputes.'" See
International Union, United Auto. Workers of Am. v. Hoosier Cardi-
nal Corp., 383 U.S. 696, 707 (1966)); accord Metz v. Tootsie Roll
Indus., 715 F.2d 299, 304 (7th Cir. 1983), cert. denied, 464 U.S. 1070
(1984).

Though cognizant of the federal policy favoring prompt resolution
of labor disputes, we have noted the Supreme Court's recent observa-
tion that "even [a limitations period of] six years is not long enough
to frustrate th[at policy]." See North Star Steel Co. v. Thomas, ___
U.S. ___, 115 S. Ct. 1927, 1931 (1995) (citing Hoosier Cardinal
Corp., 383 U.S. at 707)). Rather than attempt to distinguish the fac-
tual patterns that have elicited such observations--an undertaking
about which we do not now express any opinion--we have chosen
instead to determine whether the continuing-violation theory should
be applied in the case at bar by relying principally upon a line of cases
emerging from the Supreme Court's decision in Local Lodge No.
1424, Int'l Ass'n of Machinists v. NLRB, 362 U.S. 411 (1960).

In Local Lodge No. 1424, a collective bargaining agreement had
been executed by an employer and by a union that did not represent
a majority of the employees that the agreement purported to cover. Id.
at 412. The agreement contained a "union security clause," under
which employees were required to join the union within forty-five
days. Id. More than six months after the agreement had been exe-
cuted, employees filed charges against the union and the employer,
alleging that it was an unfair labor practice for an employer and a
union to enter an agreement containing such a security clause when
the union did not represent a majority of the employees in the bar-
gaining unit. Id. at 414. The Court held that the charges were time-
barred by Section 10(b). Id. at 415. The Court rejected the notion that

                    5
the ongoing enforcement of the agreement was a continuing violation,
because "the entire foundation of the unfair labor practice charged
was the Union's time-barred lack of majority status when the original
collective bargaining agreement was signed." Id. at 417. If the Union
had represented a majority of the relevant employees at the time it
executed the agreement, the Court pointed out, the security clause
would have been entirely unobjectionable; because the unfair labor
practice charges were therefore founded upon an occurrence that lay
outside the six-month period, the charges were barred by the statute
of limitations. Id. at 417-19.

We had occasion to review the Supreme Court's decision in Local
Lodge No. 1424 in Cone Mills Corp. v. NLRB , 413 F.2d 445 (4th Cir.
1969). In Cone Mills, the union had asked the employer, in November
1965, to provide information concerning a proposed pension plan. Id.
at 448. After receiving no reply, the union again requested the infor-
mation in December 1965, and again from time to time thereafter. Id.
The union filed unfair labor practice charges against the employer in
June 1966, more than six months after the initial request for informa-
tion had been made but within six months of the time its most recent
request for information had been refused. Id. We held that the action
was not barred by Section 10(b):

          [T]he same request was repeated from time to time after
          November 9, 1965, and within the period of six months
          prior to the charging date. Unlike the case of Local Lodge
          No. 1424 . . . , where there was only one event relied upon
          to support a charged violation occurring outside the six-
          month limitation period, and where the Court rejected the
          "continuing violation" theory, the instant case involves a
          repetitive succession of events occurring within a period of
          six months prior to the filing of the charge.

Id. at 448-49.

In Shumate v. NLRB, 452 F.2d 717 (4th Cir. 1971), we were asked
to apply the principles articulated in both Cone Mills and Local Lodge
No. 1424. During the course of a strike, several employees had
resigned from their union and crossed the picket line. Id. at 718. In
November 1967, the employees learned that the union had expelled

                    6
and fined them. Id. In May 1968, when the fines still had not been
paid, the union filed suit against the employees in state court. Id. The
employees filed unfair labor practice charges against the union in
June 1968, claiming that they had resigned from the union and that
the union had therefore violated the National Labor Relations Act
when it levied the fines and filed suit. Id. at 718. Again relying upon
a continuing-violation theory, we held that the action was not barred
by Section 10(b). Id. at 720. We reasoned that the "operative facts"
underlying the employees' cause of action consisted of the union's fil-
ing of charges in state court--an act that occurred well within the six-
month period--and that the levying of fines more than six months
before the charges were filed was merely evidence"admissible to illu-
minate the character of the union's more recent tactics." Id. at 719.

To resolve the present dispute, we must therefore determine
whether the "operative facts" underlying the Union's complaint con-
sist primarily of the contract board's initial determination that VIT's
new timekeepers policy did not violate the collective bargaining
agreement and of VIT's implementation of that policy in February
1994--events that took place well before the six-month period pre-
ceding the filing of charges--or consist instead of each occasion on
which VIT subsequently enforced the board-approved policy. We
have concluded that the Union's complaint is primarily rooted in the
contract board's February 1994 decision and in VIT's implementation
of that policy later that same month.

Section 25 of the collective bargaining agreement provided that all
of the contract board's decisions were to be regarded by the parties
as "final and binding." VIT's implementation and enforcement of the
new timekeepers policy were apparently fully in accord with the con-
tract board's February 1994 decision. Consequently, in order to pre-
vail on its Section 301 claim against VIT, Local 1624 was required
to show some reason why--contrary to the terms of the collective
bargaining agreement--the February 1994 decision of the contract
board should not be regarded as final and binding. See DelCostello,
462 U.S. at 164-65 (stating that, while an employee will ordinarily be
bound by the results of a grievance procedure "according to the final-
ity provisions of the [collective bargaining] agreement," an employee
can challenge the results of that grievance procedure by bringing a
hybrid claim against the union, the employer, or both, alleging that

                    7
the union represented him in the grievance proceedings in a "discrimi-
natory, dishonest, arbitrary, or perfunctory fashion" and that the
employer violated the collective bargaining agreement); accord Hines
v. Anchor Motor Freight, Inc., 424 U.S. 554, 571 (1976). The Union
attempted to make such a showing, in its brief to this court and in
documents submitted to the District Court, by contending that the
contract board's decision was not final and binding because a repre-
sentative of the parent union had failed to represent Local 1624 fairly
before the board in February 1994. It is therefore clear that the
Union's chief quarrel is with the "final and binding" decision ren-
dered by the board in February 1994. Because the heart of the
Union's complaint lies outside the six-month limitations period, this
case is more akin to Local Lodge No. 1424 than to Cone Mills and
Shumate, and the action is barred. Compare West v. ITT Continental
Baking Co., 683 F.2d 845, 846 (4th Cir. 1982) (refusing to apply the
continuing-violation theory because the plaintiff's complaint focused
upon his former employer's refusal to amend a decision made outside
the applicable three-year limitations period and because, if the theory
were applied, the plaintiff could "destroy the policies of finality and
repose underlying the statute of limitations" by requesting once every
three years that the employer change its decision).

III.

The District Court refused to grant the Union's Rule 56(f)3 motion
to delay ruling on VIT's summary judgment motion until the Union
had conducted discovery concerning statements made during a May
2, 1995, meeting of the contract board. In light of our conclusion that
the Union's complaint is time-barred, we need not consider the
Union's contention that the motion should have been granted.
_________________________________________________________________

3 Rule 56(f) of the Federal Rules of Civil Procedure states:

          Should it appear from the affidavits of a party opposing the
          motion [for summary judgment] that the party cannot for reasons
          stated present by affidavit facts essential to justify the party's
          opposition, the court may refuse the application for judgment or
          may order a continuance to permit affidavits to be obtained or
          depositions to be taken or discovery to be had or may make such
          other order as is just.

                    8
We have reviewed the Union's other arguments and find them to
be without merit. Accordingly, the judgment is

AFFIRMED.

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