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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schaub v. K&L Distributors, Inc (06/24/2005) sp-5911

Schaub v. K&L Distributors, Inc (06/24/2005) sp-5911

Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER.  
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K 
Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail 
corrections@appellate.courts.state.ak.us.


	THE SUPREME COURT OF THE STATE OF ALASKA

	
KYLE SCHAUB,				)
                                )	Supreme Court No. S-11186
              Appellant,			)
                                )	Superior Court No.
     v.					)	3AN-02-09507 CI
                                )
K&L DISTRIBUTORS, INC.,		)	O P I N I O N
                                )
              Appellee.			)	[No. 5911 - June 24, 2005]
                                )




Appeal from the Superior Court of the State of Alaska, Third 
Judicial District, Anchorage, Peter A. Michalski, Judge.

Appearances: Thomas R. Lucas, Law Office of Thomas R. 
Lucas, Anchorage, for Appellant.  Jon T. Givens, Bankston, 
Gronning, O=Hara, Sedor, Mills, Givens & Heaphey, PC, 
Anchorage, for Appellee.

Before:  Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and 
Carpeneti, Justices.  

FABE, Justice.

I.	INTRODUCTION


           Kyle Schaub sued K&L Distributors, Inc. for breach of contract after 
being terminated for failing to notify his supervisor of his absence from three  
consecutive days of work, as required under the parties= collective bargaining 
agreement. The superior court granted K&L=s motion for summary judgment, 
concluding that Schaub failed to exhaust his administrative remedies and was not 
excused from doing so.  Because we conclude that Schaub=s claim was time-
barred, we affirm the superior court=s order granting summary judgment to K&L 
without reaching the exhaustion of remedies question.
II.	FACTS AND PROCEEDINGS
A.	Facts	
           Kyle Schaub worked as a delivery driver for K&L Distributors pursuant 
to a collective bargaining agreement (CBA) between K&L and Teamsters Union 
Local No. 959 of the International Brotherhood of Teamsters.  Schaub missed 
work due to medical problems for much of May and all of June and July before 
being terminated in July 2000.
           The applicable collective bargaining agreement prevents K&L from 
discharging an employee unless the employee has received a written warning 
specifically stating the grounds for K&L=s dissatisfaction.   The CBA requires that 
a doctor=s slip be provided after the third consecutive day off.  K&L=s procedure 
requires that A[a]ll doctor=s excuses need to be stamped with the time clock and 
deposited in the drop box provided.  The excuses are due upon returning to 
work.@  In a letter of agreement between K&L and the Union, the absentee policy 
provides:
           

In the case of an absence, you are required to notify 
your immediate supervisor/management no later than 
one (1) hour before the start of your work day.  Failure to 
notify your supervisor of your absence for three (3) 
consecutive days may be considered a voluntary quit.  
Extenuating circumstances for absence or tardiness will 
be considered on an individual basis.  Repeated 
absences or tardiness will result in written warnings or 
even termination.[ ]
           Schaub first visited his eye doctor in April 2000 because he was 
experiencing distortion and blind spots in his vision.  At an April 17, 2000 
appointment, his doctor informed him that he probably had a tumor behind his eye 
and referred him to an eye hospital in Florida.  On April 30 Schaub arranged with 
K&L to take leave from May 15 until May 19 for his May 17 appointment in Florida.
           Schaub was injured at work on May 4 but he continued to work.  He 
then took a personal leave of absence from May 8-12.  On May 12 Schaub saw 
Dr. Deleo about his May 4 work injury and Dr. Deleo determined that Schaub had 
a hernia.  At the appointment, Dr. Deleo issued a work status report restricting 
Schaub=s work to light lifting.  Schaub provided the report to K&L that same day.  
Also on May 12, Schaub filled out a workers= compensation form for his May 4 
injury.
           

           At Schaub=s May 17 appointment in Florida, the doctors determined 
that he did have a tumor behind his eye and Schaub underwent treatment on May 
19.  Schaub scheduled a follow-up appointment for May 24.  Schaub called K&L 
and left a message for his supervisor, David McMullen, at 12:05 a.m. Alaska time 
on May 22 informing McMullen that he would be in Florida for the rest of the 
week. Then on May 23 Schaub spoke with someone at K&L and explained in 
detail why he was in Florida and that he would not be returning to Alaska for one 
to two weeks.  On May 24 Schaub again attempted to speak with McMullen and 
left a message about his return from Florida.
           On May 30 McMullen sent a letter to Schaub about his absence from 
work on May 22 informing Schaub that simply leaving messages did not mean 
that absences were approved.  Schaub returned to Anchorage on June 3, 2000 
and received the letter on June 5 but did not respond because he thought that he 
was unable to work due to the hernia.
           On June 13 Schaub returned to Dr. Deleo who again detected a 
hernia and provided another work status report, which Schaub submitted to K&L.  
The work status report listed the same work limitations as the previous work 
status report and recommended that the limitations remain in effect until Schaub=s 
appointment with another doctor on June 22.  That night, a K&L dispatcher called 
Schaub to inform him that he was scheduled to work the next day.  Schaub 
informed the dispatcher that he had just submitted a work status report that 
prevented him from performing warehouse work and asked the dispatcher to tell 
the night supervisor of his medical condition.  Later that night, upon receiving a 
message from the night supervisor that Schaub would be fired if he did not show 
for work the next day, Schaub called and told the night supervisor about his 
medical restriction.  Schaub told the night supervisor that McMullen was aware of 
his restriction and was informed that McMullen would be on vacation until June 
19.
           

           From June 19 until July 7, McMullen and Schaub left messages for 
each other but did not connect; in the messages Schaub informed McMullen 
about his return to Florida for follow-up on his eye.  On June 20 K&L wrote 
Schaub a letter informing him that he was scheduled to do light work that 
accommodated his medical restriction on June 26.  The letter was mailed on June 
21.  Although the letter does not indicate it, Schaub states that the only light work 
that K&L ever offered him was to operate a forklift, which was not permitted by his 
work status report.
           Schaub saw another doctor on June 27 who did not detect a hernia 
but still recommended work restrictions for two more weeks before releasing 
Schaub to full activity.  Schaub claims that he was not aware of the 
recommendation to release him to full activity.  Dr. Deleo referred Schaub to a 
different doctor for a second opinion and an appointment was scheduled for July 
6.  The doctor did not detect a hernia at the July 6 appointment but, in a letter, 
recommended a light workout and stretching program.  Schaub claims that he 
never saw this letter.
           On July 7 Schaub returned to Florida for his July 10 eye appointment. 
 That same day, Schaub=s father received McMullen=s June 20 letter informing 
him that he was scheduled to do light work and read it to Schaub on July 8.  
Schaub claims that he was confused by the letter because McMullen apparently 
knew about his medical appointments; Schaub still thought that he had a hernia; 
Schaub was unaware of any warehouse work that satisfied the restrictions; and 
McMullen knew that Schaub was in Florida for his eye.  Schaub also describes 
several conversations with an employee of the Alaska Teamsters Employer 
Service Corporation regarding his health insurance for his eye problem.  The 
employee told Schaub that he was entitled to leave for his eye and that she would 
have a union business agent contact K&L=s human resources department about 
the leave.
           

           K&L terminated Schaub=s employment by a letter dated July 19, 2000 
because Schaub Afail[ed] to notify [his] supervisor of [his] absence for three (3) 
consecutive days.@  The letter treated Schaub=s absence as a voluntary 
resignation.  From July 10 through August 21, Schaub had various eye 
appointments for treatment and contact lenses.  Upon Schaub=s August 23 return 
to Alaska, Schaub received his final paycheck from K&L but claims he never 
received the July 19 termination letter.
           Shortly after receiving his final paycheck, Schaub contacted the union 
and indicated that he wished to file a grievance.  Although Schaub told two 
different business agents that he was not notified of his termination until August 
23, they each informed him that his grievance was time-barred because the 
termination occurred on July 19.  The union never filed a grievance on Schaub=s 
behalf.  Schaub did not return to work at K&L. 
B.	Proceedings
            Schaub filed a pro se complaint against K&L on July 31, 2002, 
alleging that he was wrongfully terminated.  Schaub did not file suit against the 
union.  K&L moved for summary judgment on January 6, 2003, arguing that K&L 
properly terminated Schaub due to his failure to report to work and that Schaub 
failed to exhaust his administrative remedies.  Schaub opposed the motion.  
Superior Court Judge Peter A. Michalski granted K&L=s motion for summary 
judgment on the ground that Schaub failed to exhaust his administrative remedies 
and was not excused from doing so.
           Schaub filed a motion for reconsideration on May 16, 2003, arguing 
that he was excused from exhausting his administrative remedies.  Upon the 
superior court=s request, K&L filed an opposition to reconsideration on June 25, 
2003.  The superior court denied plaintiff=s motion for reconsideration on July 21, 
2003, determining that the union did not have Asole power under the contract to 
invoke the higher levels of the grievance procedure@  because Schaub could have 
filed a grievance report on his own and therefore was not excused from 
exhausting his remedies.
           

           Although we disagree with the superior court=s reasoning regarding 
Schaub=s failure to exhaust his remedies, we conclude that Schaub=s suit was 
time-barred.  We therefore affirm the superior court=s order granting summary 
judgment to K&L on this alternative ground.
III.	DISCUSSION
A.	Standard of Review
           This court reviews a grant of summary judgment de novo and will 
affirm the summary judgment Aif there are no genuine issues of material fact and 
if the moving party is entitled to judgment as a matter of law.@   In reviewing a 
motion for summary judgment, we draw all reasonable inferences in favor of the 
nonmoving party.   We may affirm summary judgment on grounds not considered 
by the superior court. 
B.	Schaub=s Claim Is a Federal Claim Arising Under Section 301 of 
the Labor Management Relations Act.


           For cases involving private employers, claims that are founded 
directly on rights created by collective bargaining agreements and claims 
Asubstantially dependent upon analysis of a collective-bargaining agreement@ are 
governed by ? 301 of the Labor Management Relations Act.   The parties agree 
that ? 301 completely preempts any state law cause of action for breach of a 
collective bargaining agreement.   Schaub=s wrongful termination claim is 
predicated upon a breach of the collective bargaining agreement and is therefore 
governed by ? 301. 
           

           K&L argues that Schaub=s complaint does not state a cause of action 
under federal law and therefore does not state any claim upon which relief can be 
granted.  But the fact that Schaub=s pro se complaint does not mention a federal 
statute does not mean that it fails to state a federal claim.  In Caterpillar, Inc. v. 
Williams, the United States Supreme Court noted that suits brought under ? 301 
are subject to complete preemption and observed that Aonce an area of state law 
has been completely pre-empted, any claim purportedly based on that pre-
empted state law is considered, from its inception, a federal claim, and therefore 
arises under federal law.@   Here, both parties agree that Schaub=s claim is 
governed by ? 301.  Although Schaub=s complaint does not specifically refer to ? 
301, we conclude that the complaint asserted a federal claim from its inception.
C.	A Genuine Question of Material Fact Exists as to Whether 
Schaub Attempted To Exhaust His Remedies.
           In its order granting summary judgment to K&L, the superior court 
found that Schaub had failed to exhaust his contractual and administrative 
remedies because ASchaub could have filed a Field Grievance Report himself; he 
could have asked the union Shop Steward to file a Field Grievance Report on his 
behalf; or he could=ve pressed the Union to file a grievance on his behalf.@  
Because Schaub presented genuine issues of material fact as to his ability to file 
a grievance on his own, we conclude that the superior court=s basis for granting 
summary judgment was erroneous.
           

           It is well-settled law that an employee must attempt to exhaust 
exclusive grievance and arbitration procedures established by a collective 
bargaining agreement before obtaining judicial review.   However, grievance 
procedures mandated by a collective bargaining agreement may prove 
unworkable when the employer repudiates the grievance procedures or when the 
union wrongfully refuses to process the grievance.   In the latter instance, Athe 
wrongfully discharged employee may bring an action against his employer in the 
face of a defense based upon the failure to exhaust contractual remedies, 
provided the employee can prove that the union as bargaining agent breached its 
duty of fair representation in its handling of the employee=s grievance.@ 
           

           A prerequisite for this type of claim is that Athe union has sole power 
under the contract to invoke the higher stages of the grievance procedure, and . . 
. the employee-plaintiff has been prevented from exhausting his contractual 
remedies by the union=s wrongful refusal to process the grievance.@   K&L argues 
that Schaub could have filed his own grievance under the grievance procedures 
outlined in his collective bargaining agreement.   Schaub acknowledges that step 
one of the CBA grievance procedure would have allowed him to file a grievance 
on his own behalf, but argues that he did not have access to the appropriate form 
because the form was kept at the K&L offices and Schaub had already been 
terminated.  Schaub also points out that the union had informed him that the 
grievance was time-barred and nobody informed him that he could file a 
grievance on his own.  This factual question C that is, whether Schaub actually 
could have filed his own grievance C is sufficient to preclude summary judgment 
on the question of whether Schaub attempted to exhaust the grievance remedies 
outlined in his CBA, as required by Vaca.  In addition, Schaub points to his 
various rejected requests that the union file a grievance as evidence that he did 
attempt to pursue a grievance.  Drawing reasonable inferences in Schaub=s favor, 
as required under our summary judgment standard,  the superior court could 
have concluded that Schaub pursued his grievance to the fullest extent possible.
           

           Moreover, it is not clear what Schaub could have accomplished by 
filing the grievance without the cooperation of his union.  In an order denying 
Schaub=s motion for reconsideration, the superior court wrote of step one:  ATo 
move past the initial steps of the grievance procedure here, the grievance needed 
only to be filed C the result of filing would be an immediate mandatory meeting 
with the employee, his Union representative, and his immediate supervisor.@  But 
Schaub=s collective bargaining agreement clearly requires union participation in 
steps two and three.  Thus, even if Schaub had filed his own grievance, he could 
not have moved beyond step one without the assistance of his union.  Schaub=s 
situation meets the requirement in Vaca that Athe union has sole power under the 
contract to invoke the higher stages of the grievance procedure.@ 
 		If the superior court finds that an employee did not exhaust 
contractual remedies, the next step is to determine whether the employee was 
prevented from doing so by the union=s wrongful refusal to process the 
grievance.   In Vaca, the Supreme Court observed the contradiction inherent in 
allowing a union=s activities to excuse an employee from exhausting contractual 
remedies in a suit against the employer where the employer had no control over 
the union=s actions.  But the Supreme Court concluded that if the employer has 
committed a wrongful discharge, an employee should not be prevented by the 
union=s breach from pursuing any remedies.   In its order denying Schaub=s 
motion for reconsideration, the superior court found that Schaub did not satisfy 
this court=s requirements for excusal from exhaustion, concluding that Schaub=s 
union Adid not act with bad faith, or in an arbitrary or capricious manner.@  The 
superior court also concluded that the union=s refusal to file Schaub=s grievance 
could not constitute excusal because Schaub could have filed the grievance on 
his own.  As discussed above, Schaub raised a genuine factual issue as to 
whether he could have filed his own grievance.  We now examine what 
constitutes breach of a union=s duty of fair representation.




           Under the standard set forth in Vaca, A[a] breach of the statutory duty 
of fair representation occurs only when a union=s conduct toward a member of the 
collective bargaining unit is arbitrary, discriminatory, or in bad faith.@   The Vaca 
standard presents a formidable challenge to employees, but the Supreme Court 
observed that the union in Vaca Amight well have breached its duty had it ignored 
[the employee=s] complaint or had it processed the grievance in a perfunctory 
manner.@   The standard for determining when a union=s unintentional mistake 
amounts to unfair representation is an evolving one,  and most courts require 
more than a mere showing that a union=s handling of a grievance was 
perfunctory.   In one case involving employee discharges, the Ninth Circuit 
observed that unions must undertake some investigation of grievances brought to 
their attention but that the sufficiency of the union=s actions will vary with each 
case.   The Ninth Circuit Court reasoned:  AAlthough we afford unions a 
reasonable range of discretion in deciding how best to handle grievances, union 
conduct that shows an egregious disregard for the rights of union members 
constitutes a breach of the duty of fair representation.@   The court also noted 
that the fact that employees had been discharged put an additional responsibility 
on the union, stating that Athe Union needed to exercise special care in handling 
petitioners= grievance because they concerned discharges, the most serious 
sanction an employer can impose.@ 
           

           In this case, Schaub alleges facts indicating that the union may have 
misinterpreted the CBA when it refused to process his grievance, resulting in 
Schaub missing a grievance filing deadline that he otherwise could have met.  
Schaub testified in a deposition that his union informed him that it could not file 
his grievance because more than ten days had passed since his termination.  
Schaub also stated in an affidavit that he never received the July 19 letter 
terminating his employment and explained that he first learned of his termination 
when he received his final paycheck in late August:
I returned to Anchorage on August 23, 2000.  When I 
got my mail I received a final paycheck from K&L.  I 
contacted the Teamsters Union within a day or two of 
my arrival and requested to file a grievance.  The first 
Business Agent I spoke to . . . told me it was too late to 
file a grievance since I had been fired on July 19.  I told 
him I knew nothing about being fired on July 19, that I 
only learned I had been terminated when I got home and 
had my final paycheck in the mail, on August 23.  
Another Business Agent, Mr. Trosper, told me the same 
thing C I could not file a grievance because it was too 
late.  Although I requested a grievance to be filed, the 
union refused to do so.


Article 8, section 8.02 of Schaub=s collective bargaining agreement allows an 
employee twenty work days from Awhen the employee had, or reasonably should 
have had, notice of the grievance@ to file a grievance regarding a termination.  
Similarly, article 6, section 6.06 allows an employee twenty work days after a 
notice of termination to file a grievance.   When interpreting collective bargaining 
agreements, courts Awill if possible give effect to all parts of the instrument and an 
interpretation which gives a reasonable meaning to all its provisions will be 
preferred to one which leaves a portion of the writing useless or inexplicable . . . 
.@   Applying this principle, we conclude that the Areasonably should have had 
notice@ language in section 8.02 applies to section 6.06 as well.


           Federal case law and the collective bargaining agreement indicate 
that the twenty-day deadline for filing Schaub=s grievance did not begin to run until 
Schaub received actual notice of his termination.  In a case examining the 
timeliness of a written notice mailed by a union the day before Thanksgiving, 
resulting in late receipt of the notice, the Ninth Circuit observed that the general 
rule for written notice is that the intended recipient must receive actual notice.   
The federal appeals court wrote:  AWhere the giving of written notice is required 
by statute or contract and the manner of giving the notice is not specified, the 
general rule is that [there] must be personal service of the notice.  However, it is 
sufficient to show that the party to be notified received actual written notice, the 
means employed being unimportant.@   The court continued:  AThe power of 
termination of a contract of employment, or of any other continuing contract can 
be effectively exercised only by bringing home notice to the other party, not by 
merely mailing it to him.@   Schaub=s collective bargaining agreement states that 
the employee Awill be asked to sign an acknowledgment of receipt@ of the 
discharge.   This provision indicates that actual notice of the termination was 
required before the twenty-day deadline for filing a grievance began to run.   
However, we need not reach the question of whether the union=s handling of 
Schaub=s complaint was perfunctory and its refusal to file a grievance wrongful 
under Vaca because we conclude that Schaub=s claim is time-barred.
D.	Schaub=s Claim Is Time-Barred Because a Six-Month Statute of 
Limitations Applies.


           In DelCostello v. International Brotherhood of Teamsters, the United 
States Supreme Court held that a six-month statute of limitations applies to 
Ahybrid@ claims in which an employee must prove both that the employer 
breached a provision of the collective bargaining agreement and that the union 
breached its duty of fair representation in order to prevail.   Schaub 
acknowledges that his claim is a hybrid claim but argues that it is subject to the 
three-year statute of limitations that applies to breach of contract claims under 
Alaska law.   Because Schaub=s claim is hybrid, we conclude that the six-month 
statute of limitations adopted in DelCostello applies to this case.	
1.	Schaub=s claim is a hybrid claim.
           If Schaub=s claim were a straightforward suit under ? 301 for breach 
of the collective bargaining agreement, the suit would be subject to the state 
statute of limitations for contract actions.   But the collective bargaining 
agreement in this case contains mandatory grievance and arbitration procedures 
in which Schaub=s union must participate.  As discussed above, in order to prevail 
in his suit against K&L, Schaub must demonstrate both that his discharge violated 
the collective bargaining agreement and that his union breached its duty of fair 
representation.   This makes Schaub=s claim hybrid.
           

           In DelCostello, the Supreme Court explained that a claim may be 
hybrid even when the employee chooses to sue only the employer or only the 
union.   The Supreme Court reasoned:  AThe 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.  The suit is thus not a straightforward breach of 
contract suit under ? 301, as was Hoosier, but a hybrid ? 301/fair representation 
claim . . . .@   This is the situation in Schaub=s case.  As one court observed, 
Awhat makes a case a >hybrid= action against both union and employer is the 
nature of the claim, not the identity of the parties.@   In fact, Schaub 
acknowledges in his briefing that his claim is hybrid.  Having determined that 
Schaub=s claim is hybrid, we next examine whether his claim is subject to the six-
month statute of limitations applied in DelCostello. 
2.	Schaub=s case is subject to the six-month statute of 
limitations applied by the Supreme Court in DelCostello.
           In DelCostello, the Supreme Court Aborrowed@ the six-month statute 
of limitations from ? 10(b) of the National Labor Relations Act  and applied it to 
two cases in which employees sued both the employer and the union.   But the 
DelCostello Court made clear that the six-month statute of limitations applies to 
suits in which the employee sues only one party, so long as the claim is a hybrid 
claim.   Because Schaub=s claim is hybrid, we conclude that it is subject to the 
six-month statute of limitations from DelCostello.
           

           Schaub relies on our decision in Quinn v. Alaska State Employees 
Ass=n  to support his argument that Alaska=s three-year statute of limitations for 
breach of contract actions applies to his claim.  In Quinn, we observed that Awhen 
an employee only sues the employer for breach of a collective bargaining 
agreement, the state statute of limitation for contract actions applies.@   However, 
this reasoning is subject to the caveat that the six-month statute of limitations 
from DelCostello applies to ? 301 claims where the employee must prove that the 
union breached its duty of fair representation in order to prevail in the claim 
against the employer.  In the Quinn opinion there is no discussion of whether 
Quinn=s claims C for unpaid overtime and penalties C were subject to grievance 
procedures in the collective bargaining agreement; without such coverage there 
would be no duty to prove a union breach of its duty of fair representation. 
           

           Schaub also argues that his case should not be controlled by 
DelCostello because it is analogous to other cases in which courts have applied 
state statutes of limitations to labor disputes.  Schaub points to Hoosier, a case in 
which the United States Supreme Court held that a state statute of limitations 
applied to a suit brought by an employee against his employer under ? 301 of the 
Labor Management Relations Act for breach of a collective bargaining 
agreement.   The Hoosier Court concluded that a uniform federal statute of 
limitations was not necessary for such cases, observing that A[t]he need for 
uniformity . . . is greatest where its absence would threaten the smooth 
functioning of those consensual processes that federal labor law is chiefly 
designed to promote C the formation of the collective agreement and the private 
settlement of disputes under it.@   Schaub argues that neither process is 
implicated in his case because he only contends that the union failed to file a 
timely grievance on his behalf.
           

           But Schaub overlooks the fact that the DelCostello Court 
distinguished Hoosier on the ground that the claim in Hoosier was a 
straightforward suit against the employer, rather than a hybrid claim.   Unlike the 
claims in DelCostello and Schaub=s claim in the instant case, the suit in Hoosier 
did not involve an agreement to submit disputes to arbitration.   Moreover, the 
union in Hoosier brought the suit, rather than the employee.   Therefore, the 
claimant in Hoosier did not need to prove a breach of the duty of fair 
representation on the part of the union in order to prevail against the employer.   
The DelCostello Court reasoned that the application of the state statute of 
limitations in Hoosier was based on the Aobvious and close analogy@ between a 
straightforward ? 301 suit and an ordinary breach of contract case.   The 
DelCostello Court rejected that analogy for hybrid ? 301/fair representation claims, 
concluding instead that hybrid cases more closely resemble the situation 
presented by claims under ? 10(b) of the National Labor Relations Act. 
           Schaub attempts to distinguish his case from Hines v. Anchor Motor 
Freight, Inc.  and from Vaca,  earlier cases that the DelCostello Court indicated 
would have been good candidates for the six-month statute of limitations from ? 
10(b).   In Hines, the union took the employees= grievance through the arbitration 
process.   In Vaca, the union filed a grievance on behalf of an employee but 
failed to take the employee=s grievance to arbitration.   Schaub contends that his 
case differs from the cases in DelCostello, Hines, and Vaca because Schaub=s 
union never attempted to settle his dispute.  But the DelCostello Court 
contemplated Schaub=s situation when it decided to apply the six-month statute of 
limitations from ? 10(b) rather than state limitations periods for vacating arbitration 
awards:
           

Application of [a state] arbitration statute seems 
straightforward enough when a grievance has run its full 
course, culminating in a formal award by a neutral 
arbitrator.  But the union=s breach of duty may consist of 
a wrongful failure to pursue a grievance to arbitration, . . 
. or a refusal to pursue it through even preliminary 
stages.  The parallel to vacation of an arbitral award 
seems tenuous at best in these situations; it is doubtful 
that many state arbitration statutes would themselves 
cover such a case in a commercial setting.[ ]
Thus, the DelCostello Court contemplated cases similar to Schaub=s when it 
chose to apply the limitations period from ? 10(b) instead of state law to hybrid 
claims.


           K&L points out that A[a]pplying a longer limitations period to hybrid 
claims involving a union that has declined to file a grievance would provide an 
incentive for unions to forsake the grievance processes to permit employees to 
bring separate suit and thereby make an end-run around the private procedures 
that federal labor law is intended to encourage.@  An equally important policy 
consideration in this case is that declining to apply DelCostello would give 
claimants in Schaub=s position an incentive to sue only one defendant in order to 
avoid application of DelCostello=s six-month limitations period.  We note that other 
courts examining this question have held that the six-month statute of limitations 
applies to all hybrid claims, regardless of whether the claimant sues the union, the 
employer, or both.   Courts that have declined to follow DelCostello have done 
so only when the cases are not hybrid claims or are not brought under the 
National Labor Relations Act.   For the reasons discussed above, we conclude 
that Schaub=s claim is subject to the six-month statute of limitations that the 
Supreme Court established for hybrid claims in DelCostello.  
           The DelCostello Court did not specify when a claim accrues for 
purposes of the statute of limitations, and courts make this determination on a 
case-by-case basis.   In Patterson, we concluded that the limitations period for 
the employee=s hybrid ? 301/fair representation suit began running when the 
employee learned of the arbitrator=s adverse decision.   We noted that in a suit 
against a union for breach of the duty of fair representation, the limitations period 
begins to run Awhen an employee knows or should know of the alleged breach of 
duty of fair representation by a union.@   In Schaub=s case, the outside date that 
the limitations period could have accrued was in October 2000, when Schaub met 
with union representatives who informed him that they would not file a grievance 
on his behalf.  Schaub filed his complaint in the superior court on July 31, 2002, 
more than a year and a half after his union refused to file his grievance.  His claim 
is therefore barred by the statute of limitations.
IV.	CONCLUSION


           Because Schaub=s claim is time-barred by the six-month statute of 
limitations, we AFFIRM the superior court=s order granting summary judgment to 
K&L.
         	Article 6, section 6.04 of the CBA provides in part:
Except as provided in Section 6.05, there shall be no 
suspension or discharge unless the Employer has given 
the employee a previous written warning notice wherein 
facts forming the grounds of Employer dissatisfaction were 
clearly set forth.
         	Article 34, section 34.03 of the CBA provides in part:  AA doctor=s slip 
will be required after the third (3rd) consecutive day off.@  This letter of agreement 
maintained this policy, stating:  AAs stated in the Collective Bargaining Agreement, 
no doctor=s slip will be required until the third (3rd) day of illness or injury in the event 
an employee elects to not go to a doctor.@
         	Quoting State v. Beard (Beard III), 960 P.2d 1, 6 (Alaska 1998).
         	Barry v. Univ. of Alaska, 85 P.3d 1022, 1025 (Alaska 2004) (citations 
omitted); see also Alaska R. Civ. P. 56(c).  
         	See, e.g., Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 269 (Alaska 
2005).
         	Marshall v. First Nat=l Bank Alaska, 97 P.3d 830, 835 (Alaska 2004) 
(citation omitted).
         	Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (quoting Int=l Bhd. 
of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n.3 (1987) (internal 
quotation marks omitted)).  Section 301 states in part: 
Suits for violation of contracts between an employer and a 
labor organization representing employees in an industry 
affecting commerce as defined in this chapter, or between 
any such labor organizations, may be brought in any 
district court of the United States having jurisdiction of the 
parties, without respect to the amount in controversy or 
without regard to the citizenship of the parties.  
Labor Management Relations Act of 1947 ? 301, 29 U.S.C. ? 185(a) (2000).  Section 
301 does not apply to public employers.  29 U.S.C. ? 152(2) (2000); see Casey v. 
City of Fairbanks, 670 P.2d 1133, 1138 n.7 (Alaska 1983); see also FEDERAL 
PROCEDURE, LAWYER=S EDITION ? 52:2206 (John A. Glenn ed., 2001).
         	See Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 
463 U.S. 1, 23 (1983) (A[T]he preemptive force of ? 301 is so powerful as to displace 
entirely any state cause of action for violation of contracts between an employer and 
a labor organization.  Any such suit is purely a creature of federal law, 
notwithstanding that state law would provide a cause of action in the absence of ? 
301.@) (internal quotation marks omitted).
         	Caterpillar, 482 U.S. at 386-87, 393.  Actions arising under ? 301 are 
controlled by federal substantive law even though brought in state court.  Avco Corp. 
v. Aero Lodge No. 735, Int=l Ass=n of Machinists and Aerospace Workers, 390 U.S. 
557, 559-60 (1968); Patterson v. State, Dep=t of Agric., 880 P.2d 1038, 1042 (Alaska 
1994).
         	Vaca v. Sipes, 386 U.S. 171, 184 (1967); see also Beard III, 960 P.2d at 
5.
         	Id. at 185.
         	Id. at 186.  The need to prove a union breach as part of a claim against 
an employer is why such claims are referred to as Ahybrid claims.@  See discussion 
infra Part III.D.1.  Our case law involving public employers and employees has 
rejected the rule of Vaca v. Sipes, 386 U.S. at 185, and does not require an 
employee to show that his union breached its duty to represent him fairly in a 
grievance procedure as a condition of suing his employer in court for wrongful 
discharge.  Casey, 670 P.2d at 1138.
         	Id. at 185.
         	Article 8, section 8.02 of Schaub=s collective bargaining agreement 
creates a three-step grievance procedure.  Section 8.02 states:
Step 1:  Employee grievances shall be taken up 
immediately between the aggrieved employee and the 
Union representative and the immediate supervisor.  A 
grievance shall be considered untimely if not filed within 
ten (10) work days of when the employee had, or 
reasonably should have had, notice of the grievance.  The 
time limits for grievances over terminations are twenty (20) 
work days as set forth in Section 6.06.  Work days are 
defined as Monday through Friday, excluding Saturdays, 
Sundays, and holidays.
Step 2:  If the grievance is not resolved within five (5) work 
days at Step 1, the Union may submit it in writing to a 
grievance panel consisting of two Union representatives 
and two Employer representatives.  The panel must 
convene within ten (10) work days of submission of the 
grievance at this step.
Step 3:  If the grievance is not resolved at Step 2, it may 
be taken to arbitration if either the Union or the Employer 
so requests.
         	See Morgan, 107 P.3d at 269. 
         	Vaca, 386 U.S. at 185; see also Beard v. Baum (Beard I), 796 P.2d 
1344, 1349 (Alaska 1990).
         	Id. 
         	Id.; see also Beard III, 960 P.2d at 10 (Rabinowitz, J., concurring).
         	Id. at 190 (citation omitted).  Justice Rabinowitz described the general 
standard applicable to union breach cases as follows:
The standard which emerges from this fairly consistent 
line of cases is that a union=s decision not to pursue an 
employee grievance is reviewed only for an abuse of 
discretion.  A union=s refusal to grieve constitutes a breach 
of duty only when it stems from an improper motive or 
lacks a rational basis.  As the gatekeeper to arbitration, 
the union must be allowed to independently decide which 
claims are meritorious and should go forward.  Judicial 
review is deferential.  
Beard III, 960 P.2d at 12 (Rabinowitz, J., concurring).
         	Id. at 194; see also Kollodge v. State, 757 P.2d 1028, 1034 (Alaska 
1988) (noting that Aunions are obligated to expend at least a minimal amount of 
investigation and preparation of members= grievances@).
         	See Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1272 (9th Cir. 
1983).
         	See, e.g., Wilson v. Int=l Bhd. of Teamsters, Chauffeurs, 
Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747, 753 (6th Cir. 1996) 
(affirming summary judgment in favor of defendants because union representative=s 
Ahandling of the grievance, while perhaps less than vigorous, was not >hostile= @); 
Reed v. Int=l Union of United Auto., Aerospace & Agric. Implement Workers of Am., 
945 F.2d 198, 203 (7th Cir. 1991) (AA union may act upon its reasonable 
interpretation of a labor contract; it need not prosecute a grievance that it honestly 
believes lacks merit.@); Lowrey v. Exxon Corp., 812 F. Supp. 644, 650 (M.D. La. 
1993) (ANeither negligence nor mistake in judgment is enough to support a claim that 
the union acted in an arbitrary or perfunctory manner.@).  Other courts have 
concluded that improper union motivation may not be required where perfunctory 
conduct is alleged and proved.  See, e.g., Dutrisac, 749 F.2d at 1273 (concluding 
that Athe union should be responsible for a total failure to act that is unexplained and 
unexcused@); Ethier v. U.S. Postal Serv., 590 F.2d 733, 737 n.3 (8th Cir. 1979).
         	Tenorio v. NLRB, 680 F.2d 598, 601-02 (9th Cir. 1982) (holding that 
union=s handling of grievance was inadequate because union did not attempt to learn 
about the circumstances leading to discharge); see also Wilson v. Municipality of 
Anchorage, 977 P.2d 713, 719 (Alaska 1999).
         	Id. at 601 (citations omitted).
         	Id. at 602.
         	Article 6, section 6.06 states:  AIf no grievance (protest) is filed, in 
writing, within ten (10) work days, excluding Saturdays, Sundays, and holidays, of 
the delivery of a warning notice or a notice of suspension, the misconduct alleged in 
the notice shall be taken as admitted and may not be contested as a fact in any 
subsequent grievance or arbitration proceeding.  A grievance must be filed within 
twenty (20) work days of a notice of termination or the termination shall be 
considered final and not subject to the grievance and arbitration provisions of this 
Agreement.@
         	20 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF 
CONTRACTS ? 55:20 (4th ed. 2001) (quoting J.E. Faltin Motor Transp., Inc. v. Eazor 
Exp., Inc., 172 F. Supp. 175, 178 (W.D. Pa. 1959) (internal quotation marks 
omitted)).
         	NLRB v. Vapor Recovery Sys. Co., 311 F.2d 782, 785 (9th Cir. 1962).
         	Id.
         	Id. (quoting 1 CORBIN ON CONTRACTS ? 264 at 878, 879 (1950) (internal 
quotation marks omitted)).
         	Article 6, section 6.03.  This section states in part:  AA copy of each 
warning notice, notice of suspension, or notice of discharge shall immediately be 
delivered to the employee and to the shop steward and a copy forwarded to the 
Union.  The employee will be asked to sign an acknowledgment of receipt of a copy 
of the warning, suspension, or discharge.@
         	The Ashould have had notice@ language in the CBA might be construed 
to require something less than actual notice.  In light of the language requiring a 
signature acknowledging receipt, we conclude that the better interpretation of the 
CBA is that the Ashould have had notice@ language is aimed at the situation where an 
employee ignores or fails to read a letter that has been received.  Cf. NLRB v. Gen. 
Teamsters Local No. 439, 837 F.2d 888, 891 (9th Cir. 1988) (observing that the 
NLRB does not require that a union have actual knowledge of an employee=s 
resignation from the union before the resignation is deemed effective and noting a 
case where the NLRB held that Athe failure of the union to pick up the letter until 
several days later should not affect the employee=s right to resign@).
         	462 U.S. 151, 154, 165 (1983). 
         	See AS 09.10.053.
         	Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 (1966) 
(holding that state statute of limitations applied to union=s ? 301 suit against 
employer); see also DelCostello, 462 U.S. at 163 (observing the Aobvious and close 
analogy@ between the type of suit in Hoosier and an ordinary breach of contract suit).
         	See Vaca, 386 U.S. at 186; United Parcel Serv., Inc. v. Mitchell, 451 
U.S. 56, 62 (1981); see also DelCostello, 462 U.S. at 165; see also discussion supra 
Part III.C.
         	DelCostello, 462 U.S. at 165.
         	Id.
         	Montgomery v. Nat=l R.R. Passenger Corp., 619 F. Supp. 1393, 1398 
(D. Conn. 1985).
         	29 U.S.C. ? 160(b) (2000).
         	DelCostello, 462 U.S. at 154-55; see also Patterson, 880 P.2d at 1042-
43.
         	Id. at 165.
         	944 P.2d 468 (Alaska 1997).
         	Id. at 473.
         	Cf. Hoosier, 383 U.S. at 705 (holding that state statute of limitations 
applied to ? 301 suit where there was no agreement to submit disputes to arbitration 
and the union, rather than the employee, brought suit); Carbarga Cruz v. Fundacion 
Educativa Ana G. Mendez, Inc., 822 F.2d 188, 191-92 (1st Cir. 1987) (applying state 
statute of limitations because there was no evidence that union breached its duty of 
fair representation and employee could prevail without proving that union breached 
its duty).
         	Hoosier, 383 U.S. at 705.
         	Id. at 702.
         	DelCostello, 462 U.S. at 162; see also Hoosier, 383 U.S. at 699-701.
         	See Hoosier, 383 U.S. at 696.
         	Id. at 699.
         	See id.  For additional discussion of the Supreme Court=s reasoning in 
Hoosier, see DelCostello, 462 U.S. at 164-65.
         	DelCostello, 462 U.S. at 163.
         	Id. at 165, 169.
         	424 U.S. 554, 571 (1976) (holding that enforcement of arbitration 
decisions where arbitrator has erred Ais conditioned upon the union=s having satisfied 
its statutory duty fairly to represent the employee in connection with the arbitration 
proceedings@).
         	Vaca, 386 U.S. at 174 .
         	DelCostello, 462 U.S. at 163.
         	Hines, 424 U.S. at 557.
         	Vaca, 386 U.S. at 175.
         	DelCostello, 462 U.S. at 166 n.16.
         	See, e.g., Livingstone v. Schnuck Market, Inc., 950 F.2d 579, 582 (8th 
Cir. 1991) (applying six-month limitations period to hybrid suit where claimant sued 
only his employer); McKee v. Transco Prod., Inc., 874 F.2d 83, 84 (2d Cir. 1989) 
(same); Conley v. Int=l Bhd. of Elec. Workers, Local 639, 810 F.2d 913, 915 (9th Cir. 
1987) (applying DelCostello to suit where claimant sued only union); Cole v. 
Pathmark of Fairlawn, 672 F. Supp. 796, 806 (D. N.J. 1987) (applying DelCostello to 
suit against employer only); Mallory v. Ingersoll-Rand Co., 621 F. Supp. 1040, 1043 
(W.D. Va. 1985) (same); Montgomery, 619 F. Supp. at 1398 (same).
         	See, e.g., Allen v. Hennepin County, 680 N.W.2d 560, 564 (Minn. App. 
2004) (declining to apply six-month statute of limitations to case brought under 
Minnesota=s Public Employment Labor Relations Act); Graham v. Quincy Food Serv. 
Employees Ass=n, 555 N.E.2d 543, 612 (Mass. 1990) (declining to apply DelCostello 
to suit brought under Massachusetts state law).
         	See Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986) (noting 
that an analysis of the accrual date Amust focus on the context in which the claim 
arose@).
         	Patterson, 880 P.2d at 1043.
         	Id. at 1043 n.10 (quoting Galindo, 793 F.2d at 1509) (internal quotation 
marks omitted).
 
 
 
 

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