                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 99-3372
                                   ___________

John E. Scott, Sr.; Denise              *
D. Clark, and on behalf of              *
themselves and all others               *
similarly situated,                     *
                                        *
      Plaintiffs/Appellees,             *
                                        *
      v.                                *
                                        * Appeals from the United States
United Automobile, Aerospace            * District Court for the District of
and Agricultural Implement              * Minnesota.
Workers of America (UAW                 *
Union), Local Union 879, a              *
Labor Organization,                     *
                                        *
      Defendant/Appellant,              *
                                        *
      v.                                *
                                        *
Ford Motor Company, a                   *
Delaware Corporation,                   *
                                        *
      Defendant/Appellee.               *
                                   ___________

                                   No. 99-3811
                                   ___________

John E. Scott, Sr.; Denise               *
D. Clark, and on behalf of               *
themselves and all others                *
similarly situated,                      *
                                         *
      Plaintiffs/Appellants,             *
                                         *
      v.                                 *
                                         *
United Automobile, Aerospace             *
and Agricultural Implement               *
Workers of America (UAW                  *
Union), Local Union 879, a               *
Labor Organization; Ford                 *
Motor Company, a Delaware                *
Corporation,                             *
                                         *
      Defendants/Appellees.              *
                                    ___________

                               Submitted: October 18, 2000

                                   Filed: February 26, 2001
                                    ___________

Before WOLLMAN, Chief Judge, LAY and BEAM, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

     These consolidated cases are "hybrid" actions under Section 301 of the Labor-
Management Relations Act, 29 U.S.C. § 185 (Section 301), filed by plaintiffs John E.
Scott, Sr. and Denise D. Clark, employees of Ford Motor Company's Twin Cities
Assembly Plant. Clark and Scott bring these actions on behalf of a putative class (the
class) of all employees of the Twin Cities facility who have been represented by the
United Automobile, Aerospace and Agricultural Implement Workers (UAW), Local
879 since 1984. The class alleges Ford breached the health and safety provisions of
its collective bargaining agreement (CBA) with UAW and that UAW breached its duty

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of fair representation by failing to enforce the provisions. The district court granted
summary judgment in favor of Ford, reasoning that the class did not have standing to
maintain a Section 301 claim against Ford for violation of the health and safety
provisions of the CBA. The district court denied UAW's motion for summary
judgment, finding there were factual issues concerning whether UAW had breached its
duty of fair representation. This court granted UAW permission to appeal this
interlocutory ruling. Because we find that the class is barred from bringing suit against
UAW by the applicable statute of limitations, we affirm in part and reverse in part.

I.    BACKGROUND

       Scott filed a health and safety grievance on December 10, 1995, alleging Ford
had violated the CBA by exposing employees to hazardous chemicals without properly
warning and training the employees. UAW decided to withdraw this grievance in
January 1996, but due to a turnover of union representatives, the grievance was not
formally withdrawn until September 27, 1996. On February 1, 1996, Scott's attorney
filed charges with the recording secretary of UAW Local 879, against several members
of the executive board of Local 879. These allegations were substantially similar to the
allegations contained in the complaint in this action, with both asserting a breach of the
duty of fair representation. The initial complaint alleging the hybrid Section 301/breach
of fair representation claim was filed August 12, 1996, roughly one and one-half
months before the grievance was formally withdrawn by UAW.

      Clark left Ford in February 1996 on medical leave and has not filed any
grievances nor made any health and safety complaints subsequent to that time. Clark
was not included as a named plaintiff to this action until January 1997.




                                           -3-
II.   DISCUSSION

       In this action the class seeks to pursue a hybrid claim under Section 301 against
Ford for breach of the CBA and against UAW for breach of the duty of fair
representation. Although the contractual remedies under a collective bargaining
agreement between the employer and union ordinarily are exclusive, if the union has
sole power under the contract to utilize the higher stages of a grievance procedure and
wrongfully refuses to process a grievance, the employee may bring a hybrid action
under Section 301. Vaca v. Sipes, 386 U.S. 171, 184-85 (1967). 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. Id. at 186-87.

       Such an action is governed by the six-month statute of limitations set forth by the
Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151
(1983). In DelCostello, the Court reasoned that a hybrid Section 301 fair
representation claim resembled a claim for an unfair labor practice under the National
Labor Relations Act (NLRA), and imposed a six-month limitations period similar to the
limitation period found in section 10b of the NLRA. Id. at 169-70, 172. The statute
of limitations begins running when the employee "should reasonably have known of the
union's alleged breach." Evans v. Northwest Airlines, Inc., 29 F.3d 438, 441 (8th Cir.
1994).

       The class cannot maintain an action against UAW for breach of the duty of fair
representation because the action was not filed within the six-month statute of
limitations. At the very latest, Scott knew that UAW was not going to pursue the
grievance when he filed charges against the union's executive board on February 1,
1996. Scott filed his December 1995 grievance with unit committee person John
Moore, and Moore was one of the board members Scott filed charges against on
February 1, 1996. In these charges, Scott alleges:

                                           -4-
      During the period from 1993 until 1996, Moore breached his duty of fair
      representation owed to the membership of Local 879 by failing to handle
      grievances regarding [health and safety issues] in a proper manner.
      Moore dealt with grievances filed by members on these issues in a
      perfunctory manner, and the manner in which he allowed them to be
      processed was arbitrary, capricious, in bad faith, and without a rational
      basis. These actions by Moore were in violation of the UAW
      International Constitution, the Contract, and state and federal law.

Thus, it is apparent Scott had sufficient facts to form the basis of his breach of duty of
fair representation claim concerning the December 1995, grievance on February 1,
1996, more than six months prior to August 12, 1996, when this action was filed.

       In Gustafson v. Cornelius Co., 724 F.2d 75 (8th Cir. 1983), a Section 301 hybrid
case wherein the exact date the union decided not to pursue the grievance was unclear,
we held that the cause of action accrued on the date the employee alleged in an unfair
labor practice charge that the union had decided not to pursue the grievance. Id. at 79-
80. In the alternative, we held the latest the cause of action could have accrued was
on the date the unfair labor practice charge was filed with the National Labor Relations
Board (NLRB). Id. at 79 n.10. See also Washington v. Service Employees Int'l Union,
Local 50, 130 F.3d 825, 826 (8th Cir. 1997) (holding that six- month statute of
limitations began to run on date employee filed unfair labor practice charge against
union with NLRB, and no continuing violation recognized). Although Scott filed the
charges here with the union's executive board rather than with the NLRB as was the
case in Gustafson and Washington, we do not see an appreciable difference. The key
inquiry is what Scott knew or reasonably should have known about the union's decision
to pursue the grievance. The record indicates Scott had the requisite knowledge on
February 1, 1996, at the very latest.

     Further, there is evidence Scott had the requisite knowledge even earlier.
According to the CBA, only the Unit Health and Safety Representative has authority

                                           -5-
to file a health and safety grievance. Scott's affidavit indicates he was frustrated with
these CBA-prescribed special procedures for health and safety violations and instead
filed a health and safety grievance, wrongly, through the collective bargaining grievance
system. Scott further indicated he knew he was using the wrong procedure for this type
of grievance, stating: "[m]y decision to try the regular grievance process was a
deliberate one, not one out of ignorance. I had no choice but to bypass the health and
safety process . . . ." Therefore, the December 1995 health and safety grievance, filed
incorrectly in the collective bargaining system, would be futile. Thus, Scott knew, or
reasonably should have known, when he filed the grievance in December that he was
using the wrong procedure to file this health and safety grievance, and that it would
likewise not be pursued by UAW.

       The date of the grievance's formal denial does not support the argument that the
cause of action accrued only after this action was taken. Scott's grievance was not
formally denied until September 27, 1996, more than a month after this suit was filed.
Thus, Scott's claim is time-barred under the six-month statute of limitations.
Additionally, because Clark did not file any grievance during this relevant time period
and instead relies on Scott's December 1995 grievance, Clark's claims are also barred
by the statute of limitations.

       In order to prevail against either the union or employer, the employee must prove
both the breach of duty of fair representation and the breach of the collective bargaining
agreement. Vaca, 386 U.S. at 186-87. The class is barred from proving the breach of
duty of fair representation by the union, therefore summary judgment in favor of Ford
is also proper. See Barlow v. American Nat'l Can Co., 173 F.3d 640, 642 (8th Cir.
1999) ("Because the union's breach of duty is a necessary element of a § 301 claim
against the employer, the employee's claims against both typically accrue, for statute
of limitations purposes, when the union's breach of duty injures the employee.");
Washington, 130 F.3d at 827 ("Because summary judgment in favor of the union was


                                           -6-
appropriate, we conclude summary judgment in favor of [the employer] was likewise
proper.").

      Accordingly, we reverse the district court's ruling denying UAW's motion for
summary judgment and affirm the district court's grant of summary judgment in favor
of Ford.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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