Cephas v. MVM, INC.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2008 Decided March 28, 2008

No. 06-5244

JAMES W. CEPHAS,

APPELLANT

v.

MVM, INC. AND

ROBERT L. CHANEY, DEPARTMENT OF JUSTICE, UNITED

STATES ATTORNEY’S OFFICE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv00033)

Richard J. Link, Jr. argued the cause and filed the brief for

appellant.

Katherine A. Goetzl argued the cause for appellee MVM,

Inc. With her on the brief was Jason M. Branciforte.

Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

2

GINSBURG, Circuit Judge: James Cephas sued his em-

ployer, MVM, Inc., for damages, claiming the company violated

its Collective Bargaining Agreement (CBA) with Cephas’s

union when it transferred him to another position. The district

court first held Cephas’s claim arose under § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, because § 301

completely preempts a claim for breach of a CBA cast in terms

of state contract law. The court then held the applicable statute

of limitations was to be found in § 10(b) of the National Labor

Relations Act, 29 U.S.C. § 160(b) (six months), and dismissed

the action as untimely. We hold the applicable limitation period

was to be found in the District of Columbia Code, § 12-301(7)

(three years), pursuant to which this case was timely filed.

I. Background

At all relevant times MVM provided security guards for

various premises in Washington, D.C. under a contract with the

U.S. Marshals Service. Cephas was employed by MVM as a

Court Security Officer at the U.S. Attorney’s Office in March

2003 when Robert Chaney, the government official in charge of

security there, alleged Cephas failed to respond to an emergency

while on duty and invoked the Government’s contractual right

to have Cephas removed. As a result, MVM transferred Cephas

to its security force at the National Courts Building.

Cephas’s union filed a grievance with MVM, claiming the

transfer was inconsistent with its CBA. MVM denied the

grievance on the ground that the transfer of Cephas was “not

reviewable” under the CBA because it “was done at the written

request of the Government.”

In December 2004, Cephas sued Chaney and MVM in the

Superior Court of the District of Columbia, alleging Chaney had

defamed him and MVM had transferred him in violation of the

3

CBA and unspecified “rights of Cephas.” MVM removed the

case to the United States district court, which dismissed the suit

against MVM in September 2005. The court reasoned that

§ 301 of the LMRA completely preempted Cephas’s claim

under D.C. law and that, recast as a federal claim arising under

§ 301, it was barred by the six-month statute of limitations in

§ 10(b) of the NLRA. 403 F. Supp. 2d 17; see Caterpillar Inc.

v. Williams, 482 U.S. 386, 393 (1987) (“Once 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”). In July 2006, the district court dismissed Cephas’s action

against Chaney as barred by the doctrine of sovereign immunity

or, in the alternative, as untimely.

Cephas appealed both rulings. Another panel of this court

affirmed the dismissal of the action against Chaney; we address

now only the timeliness of Cephas’s claims against MVM.

II. Analysis

Cephas argues his contract claim arises under D.C. law, i.e.,

is not completely preempted, and that, even if the claim is

completely preempted and therefore arises under § 301, D.C.

law provides the applicable statute of limitations. MVM takes

the position that § 301 completely preempts Cephas’s state law

claim and that the applicable statute of limitations is to be found

in § 10(b) of the NLRA. Reviewing these issues of law de novo,

we hold that Cephas’s claim arises under § 301 but nonetheless

was timely filed because, for the type of claim advanced in this

case, § 301 borrows the District of Columbia’s limitation period

for a breach of contract action, which is three years.

4

A. Complete Preemption

Section 301(a) of the LMRA provides:

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce ... may be brought in any district court

... without respect to the amount in controversy [and]

without regard to the citizenship of the parties.

The Supreme Court has held § 301(a) is a source of substantive

federal common law, Textile Workers Union v. Lincoln Mills of

Ala., 353 U.S. 448, 456-57 (1957), and provides a federal right

of action, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557

(1968). Moreover, an employee may sue his employer under

§ 301 for breach of a CBA even if the employer’s alleged

conduct is also an unfair labor practice prohibited by the NLRA.

See Smith v. Evening News Ass’n, 371 U.S. 195, 197, 201

(1962).

Section 301 completely preempts any action predicated

upon state law if that action “depends upon the meaning of a

collective-bargaining agreement.” Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). As the Supreme

Court has explained,

the pre-emptive 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 the

fact that state law would provide a cause of action in the

absence of § 301.

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S.

1, 23 (1983) (citing Avco Corp., 390 U.S. 557).

5

Cephas’s complaint charges MVM breached the CBA and

violated unspecified “rights” of his. Neither his complaint nor

his brief, however, identifies any source of right -- such as an

individual employment agreement -- other than the CBA. We

conclude his action depends entirely upon the meaning of the

CBA and is, therefore, completely preempted by § 301. Lingle,

486 U.S. at 405-06; cf. Caterpillar Inc., 482 U.S. at 394-95

(Section 301 does not completely preempt action for breach of

individual employment contract).

B. Timeliness

Although Cephas’s only cause of action arises under a

federal statute, that is, § 301, federal law does not necessarily

displace the statute of limitations that would apply under D.C.

law. Section 301 does not specify a statute of limitations,* and

“the general rule [is] that statutes of limitation” for federal rights

of action that do not specify a limitation period “are to be

borrowed from state law.” Reed v. United Transp. Union, 488

U.S. 319, 324 (1989); see also Holmberg v. Armbrecht, 327 U.S.

392, 395 (1946) (“As to actions at law, the silence of Congress

has been interpreted to mean that it is federal policy to adopt the

local law of limitation”). We presumptively apply the limitation

period that would apply to the state law claim that is “most

closely analogous” to the federal claim in suit. North Star Steel

Co. v. Thomas, 515 U.S. 29, 34 (1995); see also Graham County

Soil & Water Conservation Dist. v. United States ex rel. Wilson,

545 U.S. 409, 414-15 (2005) (“we ... ‘borrow’ the most closely

analogous state limitations period” in all but “the rare case”).

The presumption favoring state law is overcome only “when

the state limitations period ... would frustrate or interfere with

*

Because § 301 was enacted before December 1, 1990, the

default federal limitation period in 28 U.S.C. § 1658 is inapplicable.

6

the implementation of national policies or be at odds with the

purpose or operation of federal substantive law.” North Star

Steel, 515 U.S. at 34-35 (citations and quotations omitted). In

that event, the courts must borrow a limitation period from an

analogous federal statute. Id.; see also RICHARD H. FALLON, JR.

ET AL., HART & WECHSLER’S THE FEDERAL COURTS AND THE

FEDERAL SYSTEM 761-62 (5th ed. 2003) (discussing cases in

which the Supreme Court has “fashion[ed] a federal rule of

decision” by borrowing from a federal statute).

Cephas argues federal law does not displace the state (here,

D.C.) statute of limitations for a breach of contract action,

wherefore his case was timely filed. MVM counters, on the

authority of DelCostello v. International Brotherhood of

Teamsters, 462 U.S. 151 (1983), that the six-month statute of

limitations in § 10(b) of the NLRA displaces the presumptively

applicable state limitation period whenever an employee sues his

employer for breach of a CBA.

(1) DelCostello and the Hybrid Claim

Before DelCostello, the Supreme Court had held in a § 301

suit for breach of a CBA that the applicable statute of limitations

was to be borrowed from analogous state law. Thus, in UAW v.

Hoosier Cardinal Corp., a § 301 action for damages brought by

a union alleging the employer had breached the CBA and

various unwritten contracts of employment with the employees,

the Court applied the state statute of limitations for breach of

contract. 383 U.S. 696 (1966). In DelCostello, however, the

Court addressed a different sort of claim and reached a different

result.

Although an employee may sue an employer under § 301

for breach of a CBA, the employee first must exhaust the

grievance and arbitration procedures in the CBA. Republic Steel

7

Corp. v. Maddox, 379 U.S. 650, 652-53 (1965). If, however,

“the union representing the employee in the

grievance/arbitration procedure acts in such a discriminatory,

dishonest, arbitrary, or perfunctory fashion as to breach its duty

of fair representation” (DFR), then the “employee may bring suit

against both the employer and the union.” DelCostello, 462

U.S. at 164. Such a “hybrid § 301/fair representation claim”

consists of “two [intertwined] causes of action,” one against the

employer for breach of the CBA and the other against the union

“for breach of the union’s [DFR], which is implied” from the

NLRA. Id. at 164-65 & n.14; see also Steele v. Louisville &

Nashville R.R. Co., 323 U.S. 192 (1944) (role as exclusive

representative of employees implies DFR). The employee may

bring his action against the employer, the union, or both, “but

the case he must prove is the same.” DelCostello, 462 U.S. at

165. Regardless whom he sues, that is, if the claim is a hybrid

then the employee must show (1) the union breached its DFR

and (2) the employer breached the CBA.

In DelCostello, rather than draw upon state law to supply

the limitation period for hybrid cases employees had brought

against their employers, the Supreme Court applied the limita-

tion period in § 10(b) of the NLRA. The Court emphasized the

substantial similarity between the DFR component of a hybrid

claim and an unfair labor practice claim. Id. at 170 (“The NLRB

has consistently held that all breaches of a union’s [DFR] are in

fact unfair labor practices. ... Even if not all breaches of the

duty are unfair labor practices, ... the family resemblance is

undeniable ....”); see also Jacoby v. NLRB, 325 F.3d 301, 305-08

(D.C. Cir. 2003) (discussing overlap between DFR and unfair

labor practice claims). The Court then explained more generally

that applying the state statute of limitations would frustrate

federal labor policy:

8

In § 10(b) of the NLRA, Congress established a

limitations period attuned to what it viewed as the proper

balance between the national interests in stable bargaining

relationships and finality of private settlements, and an

employee’s interest in setting aside what he views as an

unjust settlement under the collective-bargaining system.

That is precisely the balance at issue in this case. The

employee’s interest in setting aside the final and binding

determination of a grievance through the method estab-

lished by the collective-bargaining agreement unquestion-

ably implicates those consensual processes that federal

labor law is chiefly designed to promote -- the formation of

the agreement and the private settlement of disputes under

it. Accordingly, the need for uniformity among procedures

followed for similar claims as well as the clear congressio-

nal indication of the proper balance between the interests at

stake, counsels the adoption of § 10(b) of the NLRA as the

appropriate limitations period for lawsuits such as this.

462 U.S. at 171 (quoting United Parcel Serv., Inc. v. Mitchell,

451 U.S. 56, 70-71 (1981) (Stewart, J., concurring in the

judgment) (internal citations, alterations, and quotation marks

omitted)).

The Court in DelCostello distinguished Hoosier principally

on the ground that it “did not involve any agreement to submit

disputes to arbitration.” 462 U.S. at 162.* There was no need in

*

The Court also distinguished Hoosier on the ground “the suit

was brought by the union itself rather than by an individual

employee.” 462 U.S. at 162. The relevance of the plaintiff’s identity

to the choice between state and federal statutes of limitations is not

clear, however, especially when one considers that the union in

Hoosier was suing on behalf of the employees. 383 U.S. at 699-700.

Indeed, several courts of appeals have applied Hoosier’s rationale to

9

Hoosier for “national uniformity” because that case did “not

involve ‘those consensual processes that federal labor law is

chiefly designed to promote -- the formation of the collective

agreement and the private settlement of disputes under it.’” Id.

at 163 (quoting Hoosier, 383 U.S. at 702). Nor did the union’s

suit differ from “an ordinary breach-of-contract case.” Id.

(2) MVM’s Categorical Approach

MVM argues, on the authority of DelCostello, that § 10(b)

of the NLRA provides the limitation period for any suit brought

by an employee against his employer for breach of a CBA,

including non-hybrid claims and claims not subject to a griev-

ance procedure. The district court agreed, 403 F. Supp. 2d at

23-24, which was an error of law.

As the Supreme Court explained in DelCostello, § 10(b) of

the NLRA displaces the presumption that state law defines the

limitation period for a hybrid claim because such a claim

“amount[s] to a direct challenge to the private settlement of

disputes under the [CBA]” and, in view of the federal interest in

the system of collective bargaining, § 10(b) appropriately limits

the time an employee has to mount such a challenge. 462 U.S.

at 165 (alterations and internal quotation marks omitted); see

also id. at 171. That rationale simply does not apply to every

claim arising under § 301. On the contrary, Hoosier seemingly

requires that we apply the local statute of limitations for breach

of contract when, as here, an employee seeks damages for the

an action brought by an employee for breach of a CBA, implicitly

rejecting the view that the plaintiff’s identity matters. See, e.g., Jones

v. Gen. Elec. Co., 87 F.3d 209, 211-12 (7th Cir. 1996) (critical

question is whether employee’s claim is a hybrid); Cabarga Cruz v.

Fundacion Educativa Ana G. Mendez, 822 F.2d 188, 191 & n.8 (1st

Cir. 1987) (collecting cases).

10

breach of a CBA but is not advancing a claim that was, or could

have been, resolved through the grievance procedure of the

CBA. See, e.g., Jones, 87 F.3d at 211-12 (“‘[H]ybrid’ cases ...

invoke the ‘narrow exception’” that federal law supplies a

limitation period “and are to be distinguished from ‘straightfor-

ward’ § 301 cases. For cases of the latter type, borrowing an

applicable state statute of limitations for breach of contract

remains the rule.”); Cabarga Cruz, 822 F.2d at 191 (applying

state law where claim was subject to grievance procedure but

employer repudiated CBA); Garcia v. Eidal Int’l Corp., 808

F.2d 717, 721 (10th Cir. 1986) (same); see also Vaca v. Sipes,

386 U.S. 171, 185 (1967) (employee need not exhaust grievance

procedure when employer repudiates CBA).

In resisting this conclusion, MVM points to the following

statement in DelCostello: “[E]ven if this action were considered

as arising solely under § 301 ... the objections to use of state law

and the availability of a well-suited limitations period in § 10(b)

would call for application of the latter rule.” 462 U.S. at 158

n.12. In context, however, it is clear the Court was explaining

that the hybrid claim could be considered either an action

“arising solely under § 301” or an “amalgam[], based on both an

express statutory cause of action” under § 301 for the em-

ployer’s breach of the CBA, “and an implied one” for the

union’s breach of its DFR. See id. The Court instructed that,

regardless how one considers the case, federal law should apply

because of “the objections to use of state law and the availability

of a well-suited limitations period in § 10(b).” Id. Nothing in

the opinion remotely suggests § 10(b) supplies the limitation

period for every non-hybrid action an employee brings for the

breach of a CBA.

Citing cases from other circuits, MVM asserts nonetheless

that § 10(b) provides the limitation period whenever an em-

ployee alleges under § 301 that his employer violated a CBA.

11

First, MVM relies upon Foy v. Giant Food Inc., 298 F.3d 284

(2002), in which the Fourth Circuit, citing DelCostello, applied

the limitation period in § 10(b) to a non-hybrid action by an

employee claiming his employer breached the CBA by firing

him after an altercation with another employee. Id. at 291.

Oddly, neither the opinion nor the briefs indicate whether the

issue was subject to a grievance procedure. If it was not, then as

we have explained, nothing in DelCostello required the result

reached by the Fourth Circuit, and it is in some tension with

Hoosier.

Second, MVM invokes Woosley v. Avco Corp., 944 F.2d

313 (6th Cir. 1991), but that decision is not inconsistent with our

analysis. There the court, proceeding upon the assumption that

filing a grievance and seeking arbitration would have been

futile, applied the limitation period in § 10(b) to the non-hybrid

claims of employees suing their former employer for breach of

a CBA and seeking reinstatement and back pay. Id. at 316, 318-

20. The Sixth Circuit borrowed the limitation period in § 10(b)

because “the plaintiff[s’] claims ... under the [CBA] ... involve

the question of entitlement for employment.” Id. at 318. As the

same court later pointed out, Woosley involved “‘law of the

shop’ considerations important to federal labor law.” Cummings

v. John Morrell & Co., 36 F.3d 499, 505 (6th Cir. 1994)

(quoting DelCostello, 462 U.S. at 168-69); but see DelCostello,

462 U.S. at 168-69 (focusing upon grievance and arbitration

processes). Insofar as the decision turned upon the nature of the

plaintiffs’ claims, we do not read Woosley to imply that § 10(b)

supplies the statute of limitations whenever an employee sues

his employer under § 301, as MVM suggests it does. See also

Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1216 (6th Cir.

1987) (declining to apply § 10(b) to employees’ action against

12

employer “where ... the action does not implicate the breach of

the union’s [DFR]”).*

Finally, MVM invokes the unpublished orders in Sanders

v. Hughes Aircraft Co., 26 F.3d 132 (Table), 1994 WL 227971

(9th Cir. 1994), and Keim v. Nat’l Super Mkts., Inc., 986 F.2d

503 (Table), 1993 WL 40835 (8th Cir. 1993), but they are not

inconsistent with our decision today. Each case involved a

claim as to which the union filed but later abandoned a griev-

ance, see Sanders, 1994 WL 227971, at * 1 (“The statute of

limitations began running [when the plaintiff] knew or should

have known that the union had stopped pursuing his griev-

ance”); Keim, 1993 WL 40835, at *1 (statute of limitations

“began to run ... when the Union dropped [the employee’s]

grievance”); each clearly challenged the result of the grievance

procedure, and each likely presented or should have presented

a hybrid claim for breaches of both the CBA and the DFR. See

Brief of Appellee at 22-23, Sanders v. Hughes Aircraft Co., No.

93-56378 (9th Cir. Feb. 16, 1994), 1994 WL 16133890 (arguing

complaint should be dismissed per Rule 12(b)(6) because

plaintiff must allege breach of DFR in order to sue employer).

Moreover, other decisions in both circuits recognize that

Hoosier makes the state statute of limitations applicable to non-

hybrid claims filed by an employee against his employer for

breach of a CBA. See Borowiak v. Vickers Inc., 972 F.2d 353

(Table), 1992 WL 157517, at *2 (8th Cir. 1992) (applying

§ 10(b) to employee’s claim under § 301 because “the complaint

*

We recognize a suit for specific relief, such as reinstatement,

might implicate different considerations than does an action for

damages, but we need not address whether a different statute of

limitations should apply because of the effect such a suit may have

upon collective bargaining. But see Cabarga Cruz, 822 F.2d at 191-

92 (applying state statute of limitation to non-hybrid action for

reinstatement alleging breach of CBA).

13

plainly implicated the nature of the union’s representation ... and

[was not] ... a pure breach of contract claim against the em-

ployer”); Ta v. Gen. Dynamics-Convair, 937 F.2d 614 (Table),

1991 WL 126735, at *4 (9th Cir. 1991) (“When the plaintiff’s

claim is not a hybrid, but a straightforward Section 301 claim for

breach of a [CBA], it is governed by [Hoosier]” rather than by

DelCostello).

In sum, we reject MVM’s argument that DelCostello makes

the six-month limitation period in § 10(b) applicable to every

action an employee may bring against his employer under § 301,

and we do not understand any other circuit, except perhaps the

Fourth, to have adopted that position. In our view, the applica-

ble limitation period depends upon the nature of the employee’s

claim, to which issue we now turn.

(3) The Non-Categorical Approach

Having rejected MVM’s approach, we must determine

whether Cephas raises a hybrid claim and, if not, whether

federal law otherwise requires that we borrow the six-month

limitation in § 10(b) of the NLRA. If the answers are on both

counts no, then we must apply the statute of limitations for the

“most closely analogous” action under D.C. law. See North Star

Steel, 515 U.S. at 34.

In the district court MVM at first argued that Cephas’s

complaint, which advanced a straightforward claim for breach

of contract under D.C. law, should be dismissed on the ground

that he failed to plead essential elements of a hybrid claim. The

court, however, dismissed Cephas’s action as untimely based

upon the assumption that Cephas had not advanced a hybrid

claim. 403 F. Supp. 2d at 23-24; see also id. at 22 (“this Circuit

has yet to decide whether the six-month statute of limitations in

14

NLRA § 10(b) applies when there is only a claim of breach of

the [CBA]”).

On appeal, Cephas points out that the grievance procedures

in the CBA are expressly made inapplicable “to any situation

where the Company is acting under the directives of the US

Marshals Service,” as he alleges MVM was doing in transferring

him. On brief, MVM does not disagree and treats as a “fact that

the CBA does not require an employee to use the grievance

procedure in the CBA when challenging an action by MVM

which was directed by MVM’s client -- such as Mr. Cephas’s

transfer.” At oral argument, moreover, MVM specifically

affirmed that Cephas’s claims are excluded from the grievance

and arbitration provisions of the CBA. Because Cephas’s claim

could not have been processed through the grievance procedure

in the CBA, it follows his case does not depend upon his union

having breached its DFR; he alleges a straightforward breach of

the CBA by his employer, not a hybrid claim of employer

breach of contract and union breach of the DFR.

Nor does federal law otherwise counsel application of the

limitation period in § 10(b). MVM does not even attempt to

show that it does, and we are unable to see how applying the

three-year limitation period in D.C. CODE § 12-301(7) would

frustrate “the formation of [a] collective agreement [or] the

private settlement of disputes under it.’” DelCostello, 462 U.S.

at 163. Cephas does not challenge the resolution of a grievance

or arbitration “decision which has given ‘meaning and content’

to the terms of an agreement,” or “affected subsequent modifica-

tions of the agreement,” id. at 169, and neither the pendency nor

the resolution of his suit would in any way interfere with the

formation of a new CBA. Id. at 171. Cf. Legutko v. Local 816,

Int’l Bhd. of Teamsters, 853 F.2d 1046, 1050-52 (2d Cir. 1988)

(applying § 10(b) to suit alleging violation of union’s constitu-

15

tion, which suit either would interfere with formation of CBA or

was hybrid claim).

Nothing in George v. Local Union No. 639, International

Brotherhood of Teamsters, 100 F.3d 1008 (1996), or Communi-

cations Workers v. AT&T, 10 F.3d 887 (1993), upon which

MVM relies, is to the contrary. In the former case we held

§ 10(b) applicable to an employee’s action solely against his

union for breach of the DFR. 100 F.3d at 1014. That follows

apodictically from DelCostello; § 10(b) supplies the limitation

period for a hybrid claim precisely because a hybrid claim

includes a DFR component. In Communications Workers we

applied § 10(b) to a union’s action to compel the arbitration of

a grievance because, unlike a “pure[] breach of contract ac-

tion[]” under § 301, 10 F.3d at 891-92 (alterations in original

omitted), such a case implicates the federal policy favoring the

speedy resolution of disputes pursuant to procedures set out in

a CBA. Id. at 889-91. Aside from the Eleventh Circuit, which

applied the state statute of limitations in United Paperworks

International v. ITT Rayonier, Inc., 931 F.2d 832 (1991), every

court of appeals to have considered such a case has applied the

limitation period in § 10(b) of the NLRA. See Commc’n

Workers, 10 F.3d at 889 n.1 (collecting cases); Local No. 88,

United Food and Commercial Workers Union v. Middendorf

Meat Co., 991 F.2d 801 (Table), 1993 WL 96905, at *2 (8th Cir.

1993); see also Local 1422, Int’l Longshoremen’s Ass’n v. S.C.

Stevedores Ass’n, 170 F.3d 407, 410 n.2 (4th Cir. 1999) (leaving

issue open).

Finally, MVM seemed to suggest at oral argument that the

National Labor Relations Board would have jurisdiction to

entertain an unfair labor practice complaint upon the basis of the

facts underlying Cephas’s claims, but counsel was unable to say

what unfair labor practice would be made out or why that should

matter -- as are we. See O’Hare v. Gen. Marine Transp. Corp.,

16

740 F.2d 160, 168 (2d Cir. 1984) (“DelCostello ... turns on the

particular nature of the [DFR] action, and cannot reasonably be

expanded to all section 301 claims that involve facts which

might also have established an unfair labor practice charge”);

Garcia, 808 F.2d at 721 n.2 (same); but see Cummings, 36 F.3d

at 506 (overlap with unfair labor practice relevant but not

dispositive). In view of the incompleteness of MVM’s argu-

ment, not to mention its untimeliness, we need not address

whether a § 301 case based upon facts that also make out an

unfair labor practice would require application of the statute of

limitations in § 10(b) of the NLRA.

III. Conclusion

Cephas brought an action for breach of a CBA, making no

claim that could have been processed through the grievance

procedure in that contract. His state law claim is completely

preempted and recast as a claim arising under § 301, as to which

the local statute of limitations for a breach of contract action,

D.C. CODE § 12-301(7), is presumptively applicable. MVM

having failed to overcome that presumption, we hold Cephas

timely filed his action. Accordingly, we remand the case to the

district court for further proceedings.

So ordered.