# Hester v. International Union of Operating Engineers

> Court of Appeals for the Eleventh Circuit · June 12, 1987 · 818 F.2d 1537

URL: https://www.frixlaw.com/law-library/cases/8950236

## Case

- **Full name:** Edward C. HESTER v. INTERNATIONAL UNION OF OPERATING ENGINEERS
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 12, 1987
- **Citations:** 818 F.2d 1537; 125 L.R.R.M. (BNA) 2994; 1987 U.S. App. LEXIS 7697
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tjoflat
- **Judges:** Kravitch, Tjoflat, Tuttle
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Clift v. International Union, United Automobile, Aerospace & Agricultural Implement Workers, 488 U.S. 1025 (1989).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8950236

## How later opinions describe it (automated extraction)

- explaining congressional justification for 17 excluding wholly public-sector unions from LMRDA coverage
- noting that the Act excludes purely government unions because they “did not have the power associated with corrupt leadership”

## Opinion text

TJOFLAT, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority that the district court had subject matter jurisdiction over this case and concur in Parts I and II of the majority’s opinion. I also agree with the majority that we are bound by Davis v. United Auto., Aerospace & Agric. Implement Workers, 765 F.2d 1510 (11th Cir. 1985), cert. denied, — U.S.-, 106 S.Ct. 1284 , 89 L.Ed.2d 592 (1986), which applied the six-month limitations period found in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (b) (1982), to a suit brought by a union member against his union pursuant to section 102 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 412 (1982), 1 alleging violations of LMRDA’s bill of *1549 rights, 29 U.S.C. § 411 (1982). 2 As to the majority’s analysis, in Part III. B., of when the six-month limitations period begins to run, I must respectfully dissent.
In this section 411 bill-of-rights suit brought by a union member against his union, the majority has mechanically applied the test of when a cause of action accrues — and therefore of when the limitations period begins to run — in a hybrid section 301 3 /fair representation suit brought by an employee against both his. employer and his union. In a hybrid suit, the employee’s causes of action against his employer and his union do not accrue until the dispute resolution process established by the collective bargaining agreement has been exhausted, or the union has decided to abandon the employee’s grievance; only when one of these events occurs can the employee know whether he has been injured by his employer as a result of his union’s failure fairly to represent him. In a bill-of-rights suit, as the Supreme Court and numerous courts of appeals have acknowledged, the union member has a cause of action against his union at the moment he learns that his union has infringed a right guaranteed him by LMRDA’s bill of rights. See, e.g., NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 , 88 S.Ct. 1717, 1723 , 20 L.Ed.2d 706 (1968); Chadwick v. International Bhd. of Elec. Workers, 674 F.2d 939, 941-42 (D.C.Cir.1982) (per curiam). By applying the hybrid suit test to a bill-of-rights suit, the majority not only ignores this precedent; it unfairly forbids the union member from bringing his suit until he has “exhausted” his internal union remedies (as provided by the union constitution), however long that may take. The majority’s error becomes clear when one examines and compares the nature of a hybrid suit, and how and when its causes of action accrue for statute of limitations purposes, with the nature of a bill-of-rights suit, and how and when its cause of action accrues.
I.
A.
The hybrid suit stems from an employee’s grievance against his employer that the union has failed to resolve to the employee’s satisfaction. In such a suit, the employee contends that he did not prevail against his employer because the union failed to prosecute his grievance in proper fashion through the dispute resolution mechanism provided in the collective-bargaining agreement.
The union has an affirmative duty to represent its members fairly. See, e.g., International Bhd. of Electrical Workers v. Foust, 442 U.S. 42 , 46 n. 8, 99 S.Ct. 2121 , 2125 n. 8, 60 L.Ed.2d 698 (1979) (“The duty of fair representation is ... implicit in the National Labor Relations Act.”). In the context of a member’s grievance with the employer, “a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion.” Vaca v. Sipes, 386 U.S. 171, 191 , 87 S.Ct. 903, 917 , 17 L.Ed.2d 842 (1967). In policing union conduct that is “arbitrary and perfunctory,” courts have been willing
to look beyond the question whether the union in fact pursues an employee’s grievance (contractual or statutory) and to determine whether the union has made a full investigation, has given the grievant notice and an opportunity to participate, has mustered colorable arguments and has refuted insubstantial arguments by the employer.
R. Gorman, Labor Law 718 (1976).
Unions occasionally fail to fulfill this duty of fair representation. The Supreme *1550 Court has thus recognized that when an employee has a dispute with the employer, the federal labor policy of requiring exhaustion of any grievance or arbitration remedies provided in the collective-bargaining agreement “works an unacceptable injustice when 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.” DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164 , 103 S.Ct. 2281, 2290 , 76 L.Ed.2d 476 (1983). In those instances, when a union breaches its duty to represent fairly one of its members who alleges that the employer wronged him, the “employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding.” Id. (citations omitted).
Justice Stewart, concurring in the judgment, explained the practicalities of such a hybrid suit in United Parcel Serv. v. Mitchell, 451 U.S. 56, 66-69 , 101 S.Ct. 1559, 1565-67 , 67 L.Ed.2d 732 (1981). 4 A hybrid suit consists of two distinct claims, each with its own jurisdictional basis. The cause of action against the employer rests on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982); the employee is alleging a breach of the collective-bargaining agreement. The cause of action against the union rests on the union’s duty of fair representation, implied from the National Labor Relations Act, 29 U.S.C. §§ 151-170 (1982 & Supp. III 1985); the employee is alleging that the union breached its duty to process properly his grievance with the employer. Mitchell, 451 U.S. at 67 , 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment) (citation omitted); see also DelCostello, 462 U.S. at 164 , 103 S.Ct. at 2290 . In short, the hybrid section 301/fair representation suit, or “claim,” amounts to “a direct challenge to ‘the private settlement of disputes under [the collective-bargaining agreement].’ ” Mitchell, 451 U.S. at 66 , 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment) (citation omitted); see also DelCostello, 462 U.S. at 165 , 103 S.Ct. at 2291 .
Although a hybrid suit consists of two distinct claims, those claims are “inextricably interdependent.” Mitchell, 451 U.S. at 66-67 , 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment); see also DelCostello, 462 U.S. at 164-65 , 103 S.Ct. at 2291 . A hybrid suit is an all or nothing proposition: either the union member prevails against both the employer and the union, or he loses against both. In other words, “[t]o prevail against either the company or the Union, [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 , 96 S.Ct. 1048, 1059 , 47 L.Ed.2d 231 (1976), quoted in Mitchell, 451 U.S. at 67 , 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment) and DelCostello, 462 U.S. at 165 , 103 S.Ct. at 2291 . As a practical matter, an allegedly aggrieved employee’s success against his employer turns on whether he can first show that his union wronged him in processing his grievance.
Initially, the employee must show that the union did not fairly represent him; for example, the union may have processed the grievance in a poor or perfunctory fashion, or the union may have simply taken no action to assist the employee. If the employee can show that the union breached its duty of fair representation, he must then show that had the union properly processed his grievance, he would have prevailed against the employer, i.e., the employer somehow breached the collective-bargaining agreement in its treatment of the employee. If the employee cannot show that the union breached its duty of fair representation (either for lack of evidence or because the union acted properly), then the employee will not be heard to complain against the employer. See Smith v. Babcock & Wilcox Co., 726 F.2d 1562, 1564 *1551 (11th Cir.1984) (per curiam) (“The indispensable predicate for a § 301 action ... is a showing that the union has breached its statutory duty of fair representation.”) (citation omitted). If, for example, the union acted properly in representing the employee, and the employee lost in all stages of the grievance or arbitration proceedings prescribed in the collective-bargaining agreement, a court will not relitigate the case against the employer, even if it appears that the employee should have prevailed against the employer.
In theory, an employee does not have to sue both the union and the employer. The employee may sue only one, “but the case he must prove is the same whether he sues one, the other, or both.” DelCostello, 462 U.S. at 165 , 103 S.Ct. at 2291 . In short, the case the employee must prove reduces to this proposition: “a plaintiff[-employee] must prevail upon his unfair representation claim before he may even litigate the merits of his § 301 claim against the employer.” Mitchell, 451 U.S. at 67 , 101 S.Ct. at 1566 (Stewart, J., concurring in the judgment). Moreover, because “the duty of fair representation is ‘part and parcel of [the] § 301 [claim],’ ” id. at 69, 101 S.Ct. at 1567 (citation omitted), “[w]hen the 6-month period of § 10(b) has passed, the employee should no longer be able to challenge the alleged breach of duty by his union, and as this is a precondition for maintaining the contract action, he should not be able to challenge the employer’s action either,” id. (footnote omitted).
The majority states that the DelCostello Court did not decide when the section 10(b) six-month limitation period begins to run in a hybrid section 301/fair representation suit. Ante at 1544. 5 On the contrary, the Court’s disposition of employee DelCostello’s case indicates that the Court must have decided, even if implicitly, that the limitations period began to run when the regional joint union-management committee rendered its decision concerning the employee’s grievance. See DelCostello, 462 U.S. at 155, 172 , 103 S.Ct. at 2285-86,2294-95 . There was no doubt that DelCostello’s suit was filed more than six months after the committee’s decision, which under the collective-bargaining agreement was final and binding on all parties. See id at 172, 103 S.Ct. at 2294-95 . The only reason the Supreme Court remanded the case for further proceedings was because DelCostello had raised a tolling issue that the district court had expressly declined to consider. See id. at 172 , 103 S.Ct. at 2291 .
In sum, DelCostello teaches that the hybrid suit should be viewed as two causes of action that accrue simultaneously and that the statute of limitations begins to run at the time of accrual. See id. at 163-65, 172 , 103 S.Ct. at 2290-91, 2294-95 ; see also Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558, 1559 (11th Cir.1986). 6 More specifically, the limitations period on a hybrid suit normally begins to run when two events take place: (1) the dispute resolution process of the collective-bargaining agreement has been fully exhausted or the union has decided to abandon the aggrieved employee’s cause at some point during that process, 7 and (2) the aggrieved employee *1552 receives notice of that fact. Our decision in Proudfoot recognizes that these two events signal the commencement of the limitations period. Proudfoot, 779 F.2d at 1559 .
In examining the second event, we have said that section 10(b)’s six-month limitations period commences when the employee receives notice of facts that would lead a reasonable person to believe that his union has engaged in acts constituting a violation of his right to fair representation. See Proudfoot, 779 F.2d at 1559 (citing Howard v. Lockheed-Georgia Co., 742 F.2d 612, 614 (11th Cir.1984)); see also Davis v. United Auto., Aerospace & Agric. Implement Workers, 765 F.2d 1510 , 1515 n. 13 (11th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1284 , 89 L.Ed.2d 592 (1986); Er-kins v. United Steelworkers, 723 F.2d 837 , 839 (11th Cir.), cert. denied, 467 U.S. 1243 , 104 S.Ct. 3517 , 82 L.Ed.2d 825 (1984). In other words, an aggrieved employee cannot be charged with notice that his union has breached its duty of fair representation until the union has considered his grievance and taken some action (or inaction) that would inform a reasonable person that the union has not or will not fulfill its duty fairly to prosecute the employee’s grievance. When the union has elected to pursue the dispute resolution process of the collective-bargaining agreement, the employee cannot know whether his union’s conduct has constituted a breach of the duty of fair representation until the process is completed and he has lost his case. If the employee believes that he would have prevailed had the union properly performed its duty, he has six months to bring his suit. 8 When the union decides not to prosecute the employee’s grievance or, having begun the prosecution, decides to abandon it, the employee’s cause of action begins to run at the moment the union notifies the employee of its decision. 9
Having described the nature of a hybrid cause of action, and how and when it accrues for statute of limitations purposes, I now discuss the nature of a section 411 bill-of-rights suit, such as the one Hester has brought, instituted by a union member against his union, and how and when it accrues for statute of limitations purposes.
B.
In this case, Hester brought three separate causes of action, one each against the International Union of Operating Engineers (IUOE) and two of its locals, pursuant to 29 U.S.C. § 412 (1982). That section gives a union member the right to sue his union for violating rights secured by LMRDA’s bill of rights, 29 U.S.C. § 411 (1982).
Local 660’s conduct in disciplining Hester provided the basis for each of Hester’s causes of action. Hester alleged that Local 660 fined him $3,000 for exercising his rights under the collective-bargaining agreement with his employer, but did so without serving him with a written charge, as required by LMRDA, 29 U.S.C. § 411 (a)(5)(A) (1982), 10 specifying precisely how his employment in Local 660’s jurisdic *1553 tion had violated union rules. Hester alleged that IUOE also violated section 411(a)(5)(A) when it approved Local 660’s action by summarily denying his appeal. 11 Hester alleged that Local 320 thereafter violated section 411(a)(5)(A) when, on the basis of Local 660 and IUOE’s unlawful disciplinary action, it refused to accept his union dues until he paid the fine imposed by Local 660, which IUOE had reduced from $3,000 to $500. 12
As noted above, the three discrete LMRDA violations that Hester described in his complaint all arose out of the disciplinary action that Local 660 initiated against him. In a letter dated September 16, 1983, Local 660 charged Hester with violating IUOE’s constitution by accepting employment in Local 660’s jurisdiction without its consent, and with violating its trade rules. The letter also informed Hester that Local 660 had initiated disciplinary proceedings against him. In a letter dated October 7, 1983, Hester readily acknowledged that he had worked in Local 660’s jurisdiction without its consent but denied that he had done anything wrong; he said that all he had done was to exercise his right to receive preference as a veteran, and that “[t]he union consented to veterans’ preference when it signed the contract with TVA.” In addition, he protested that Local 660’s charge against him was not specific, as required by LMRDA’s bill of rights, 29 U.S.C. § 411 (a)(5)(A) (1982), in that it failed to state how he had violated Local 660’s trade rules.
Obviously, by October 7, 1983, Hester had concluded that Local 660 was proceeding against him in violation of LMRDA’s bill of rights. On that date, he had an absolute right to file suit in the district court against Local 660; he did not have to await the outcome of the union’s disciplinary proceeding. See Chadwick v. International Bd. of Elec. Workers, 674 F.2d 939, 941-42 (D.C.Cir.1982) (per curiam) (“The district court’s jurisdiction was absolutely unaffected by [the union member’s] alleged failure to exhaust his internal remedies____”) (discussing NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418 , 88 S.Ct. 1717 , 20 L.Ed.2d 706 (1968)); see also infra note 14 (concerning power of district court to stay suit for up to four months to enable union to complete its disciplinary proceeding).
Although Hester had an absolute right to sue Local 660 at any time during the six months following October 7, 1983, the majority would have denied him that right because Local 660’s disciplinary proceeding against him had not been concluded. According to the majority, Hester had to participate in that proceeding, even if unlawful, and if disciplined, had to exhaust his appeal to IUOE. As it turned out, this disciplinary process was not concluded until August 6, 1984, when IUOE notified Hester that it had denied his appeal. At this point, the majority holds, Hester’s causes of action against Local 660 and IUOE accrued and the statute of limitations began to run. The majority does not state when Hester’s cause of action against Local 320 accrued; presumably, it accrued on September 5, 1984, when Local 320 suspended *1554 his membership pending payment of his fine to Local 660. 13
C.
As my discussion indicates, Hester had an absolute right to sue IUOE, Local 660, and Local 320 at the moment each of them violated LMRDA’s bill of rights. The statute of limitations began to run as to each of these defendants on the day Hester received notice of its LMRDA violation. As of at least October 7, 1983 — the day Hester wrote to Local 660 — he was on notice that Local 660 had instituted disciplinary action in violation of his right, under section 411(a)(5)(A), to be “served with written specific charges.” Hester did not bring suit against Local 660 in the district court, however, until November 7, 1984, well after the six-month statute of limitations had run. Hester’s federal claim against Local 660 is therefore time-barred. 14
As to Hester’s cause of action against IUOE, the timeliness of his suit depends upon the date on which Hester received notice of its LMRDA violation, i.e., August 6, 1984 (or soon thereafter), when IUOE denied Hester’s appeal. As to Hester’s cause of action against his own Local 320, *1555 the timeliness of his suit depends upon the date on which Hester received notice of its LMRDA violation, i.e., September 5, 1984 (or soon thereafter), when Local 320 wrote a letter to Hester explaining that IUOE’s constitution would not permit it to accept his membership dues until he paid the fine. Hester brought suit in the district court against both IUOE and Local 320 on November 7, 1984, well before the six-month statute of limitations had run for Hester’s causes of action against IUOE and Local 320. In sum, Hester’s federal claims are time-barred as against Local 660, but not as against IUOE or Local 320.
Instead of adopting a rule whereby the limitations period starts running when the union member’s cause of action accrues— i.e., on the day he receives notice of his union’s LMRDA violation — the majority has said, contrary to Supreme Court precedent, that the limitations period starts running when the union member receives notice that the union’s internal dispute resolution procedures (as found in the union constitution) have been exhausted. The majority derives this “exhaustion” rule from the inapposite observations in DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 , 103 S.Ct. 2281 , 76 L.Ed.2d 476 (1983), and in Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558 (11th Cir.1986), that the cause of action in a hybrid section 301/fair representation suit cannot accrue until either the dispute resolution process of the collective-bargaining agreement has been fully exhausted or the union has decided to abandon the aggrieved employee’s cause at some point during that process. 15 By doing so, the majority simply fails to recognize the difference between a hybrid suit and a section 411 bill-of-rights suit.
A hybrid suit is based on the union’s failure properly to represent the employee in his grievance with his employer; thus exhaustion (or a breakdown) of the grievance procedure must occur before the hybrid suit’s causes of action can accrue. In contrast, a section 411 bill-of-rights suit, which is based on a union’s denial of a member’s LMRDA rights, does not require exhaustion of internal union dispute resolution procedures. The majority’s rule is thus not only barred by Supreme Court and lower court precedent, see, e.g., NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 421-28 , 88 S.Ct. 1717, 1720-24 , 20 L.Ed.2d 706 (1968) (whether district court should stay union member’s suit pending exhaustion of internal union remedies is within sound discretion of district court); Chadwick v. International Bhd. of Elec. Workers, 674 F.2d 939, 941-42 (D.C.Cir.1982) (per curiam) (district court’s jurisdiction unaffected by union member’s failure to exhaust internal union remedies), but it also relies on inapposite authority for support.
Furthermore, the majority’s analytical approach is unsound. The majority acknowledges, ante at 1546 n. 24, that section 411(a)(4) 16 does not prevent a union member from filing suit against his union, although the district court may stay the action for a period of four months while union remedies are being exhausted, NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 , 88 S.Ct. 1717, 1723 , 20 L.Ed.2d 706 (1968). Presumably, the majority would also acknowledge that “[i]n appropriate circumstances, it is now well established that a district court can properly hear and decide a case [brought by a union member against the union] before the [four-month period of section 411(a)(4)] elapses.” Semancik v. United Mine Workers Dist. #5, 466 F.2d 144 , 150 (3d Cir.1972) (citations omitted); see also Industrial Union, 391 U.S. at 428 , 88 S.Ct. at 1724 (in spite of Section 411(a)(4), “a court or agency might consider whether a particular procedure was ‘reasonable’ and entertain the complaint even *1556 though those procedures had not been ‘exhausted’ ”); Chapa v. Local 18, Indus. Union of Marine & Shipbuilding Workers, 737 F.2d 929, 931 (11th Cir.1984) (“[Section 411(a)(4)] provides that a union ‘may’ require its members to exhaust reasonable internal hearing procedures before seeking court intervention, however the decision to enforce such a requirement in a particular case is within the sound discretion of the district court.”) (citations omitted). What disturbs me is that the majority does not explain how a union member whose union violates his section 411 bill of rights can file suit in district court — and in appropriate circumstances have his claims decided — before exhaustion of internal union remedies, when, according to the majority’s analysis, the union member does not even have a cause of action until the union has taken “final action,” i.e., when all internal union grievance procedures have been exhausted. Only when the union has taken final action, the majority suggests, does the union member have a cause of action; that is the point at which the majority has said the limitations period begins to run.
The majority has created a strange scheme: if the union member who has been wronged by his union does not file suit in district court before exhaustion of internal remedies, his cause of action does not accrue, and the limitations period does not begin to run, until exhaustion. On the other hand, under the majority’s theory, if the union member who has been wronged by his union does file suit in district court before exhaustion of internal remedies, his cause of action has accrued, and, under appropriate circumstances, the district court can decide the case. I cannot imagine that Congress intended this non sequitur. Moreover, I do not see how the majority’s scheme is consistent with any policy underlying our federal labor laws. 17
II.
I agree that the district court had subject matter jurisdiction over this case for the reasons given in the majority’s opinion. Nevertheless, I would affirm the district court as to its disposition of Hester’s federal claim against Local 660 because that claim is time-barred. I would reverse the judgment of the district court as to Hester’s federal claims against IUOE and Local 320 and remand the case to the district court to enable it to consider the merits of those claims. On remand, the district court should revisit the question whether Hester’s pendent state law claim should be dismissed or disposed of on the merits. See Pharo v. Smith, 625 F.2d 1226, 1227 (5th Cir.1980) (per curiam) (“That a plaintiff’s state law claims will be time-barred if dismissed is certainly a factor, if not a determinative factor, a district court should consider in deciding whether to maintain jurisdiction over pendent state claims once the federal claims have been resolved.”) (citations omitted).
. 29 U.S.C. § 412 (1982) states the following: § 412. Civil action for infringement of rights; jurisdiction
Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.
. 29 U.S.C. § 411 (a)(5) (1982), which is the portion of LMRDA’s “bill of rights” pertinent to this appeal, states the following:
(5) Safeguards against Improper disciplinary action
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.
. Section 301 of LMRDA governs ”[s]uits by and against labor organizations” and is codified at 29 U.S.C. § 185 (1982).
. In DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 , 103 S.Ct. 2281 , 76 L.Ed.2d 476 (1983), the full Court adopted Justice Stewart’s analysis of the hybrid suit and his view that the federal limitations period of section 10(b) applies to those suits.
. The same statement was made by our court in Proudfoot v. Seafarer's Int'l Union, 779 F.2d 1558, 1559 (11th Cir.1986): "The Court in Del-Costello did not decide when the six-month period begins to run.”
. This analysis of the hybrid suit avoids a dilemma that could otherwise frustrate an employee who has been wronged by both his employer and his union: an employee with a grievance against his employer may be prevented from repairing to federal court by the collective bargaining agreement, but when he is excused, possibly months later, from pursuing his contractual remedial rights because his union failed to represent him fairly, his hybrid suit may be barred by the statute of limitations.
. The facts in DelCostello presented the first of these two situations: the union prosecuted the employee’s grievance to a conclusion, utilizing the entire dispute resolution process. The employee did not prevail, and when he received notice of this fact his cause of action accrued and the statute of limitations period began to run. Though the Supreme Court was not faced with the second situation posed in the text— whether the employee’s cause of action accrues, and the limitations period begins to run, when the employee receives notice that the union has decided to abandon his grievance — I believe that the Court, given its analysis of the hybrid suit, would reach the conclusion I reach in the text.
. If the grievance procedure has made the employee whole, the employee could not possibly have a cause of action against his union (or his employer), even if the union failed to exercise due care in prosecuting his grievance.
. In Proudfoot , this circuit measured the timeliness of a hybrid suit "from the date on which the employee knew or should have known of the union’s final action or the date on which the employee knew or should have known of the employer's final action, whichever occurs later.” Proudfoot, 779 F.2d at 1559 . The court defined "final action” as "the point where the grievance procedure was exhausted or otherwise broke down to the employee’s disadvantage." Id. The Proudfoot court’s measurement of the timeliness of a hybrid suit strikes me as being a bit odd because the allegations of a hybrid suit are, first, that the employer wronged the employee in violation of the collective-bargaining agreement and, second, that the union wronged the employee because it did not represent him fairly in his grievance with the employer. The union’s "final action” always occurs after the employer’s "final action.” Thus, it is not necessary to consider when the employer breached its contract with the employee. The limitations period should begin to run when the grievance procedure has been exhausted or otherwise has broken down to the employee’s disadvantage. At that point, the employee should know whether his union handled his grievance fairly.
. See supra note 2.
. In addition to bringing a bill-of-rights claim against IUOE, Hester alleged that IUOE breached its duty of fair representation when it affirmed a fine against him for exercising his right, under IUOE’s collective bargaining agreement with TVA, to receive preference as a veteran. Clearly, Hester did not have a "fair representation” claim.
The duty of fair representation arises when the employee has a dispute with his employer and turns to his union for assistance and representation in pursuing the grievance procedures outlined in the collective-bargaining agreement. See supra text accompanying notes 4-5. Hester had no dispute with his employer and never sought union assistance to process a grievance under the collective bargaining agreement. Rather than a fair representation claim, Hester’s claim against IUOE is that it ratified Local 660's illegal action by summarily denying his appeal.
. These allegations make it clear that Hester’s suit is not a hybrid one. He had no dispute with his employer, the Tennessee Valley Authority (TVA). In fact, TVA did exactly what Hester wanted it to do: it placed Hester’s name on its veterans’ preferential hiring list and, citing the collective bargaining agreement’s provision giving preference in hiring to veterans over non-veterans, hired Hester to work at its Brown’s Ferry site.
. On September 5, 1984 — a month after IUOE denied his appeal — Hester’s own Local 320 wrote him a letter explaining that IUOE’s constitution would not permit it to accept his membership dues until he paid the $500 fine. The majority does not state, or even intimate, when Hester’s cause of action against Local 320 accrued or when the statute of limitations on that action began to run.
. Some may argue that the six-month statute of limitations period is tolled during the four-month period of 29 U.S.C. § 411 (a)(4) (1982), which limits the extent to which unions and district courts may require members to exhaust internal grievance procedures before they litigate the merits of their claims:
No labor organization shall limit the right of any member thereof to institute an action in any court ... Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof____
The Supreme Court interpreted this provision in NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 , 88 S.Ct. 1717, 1723 , 20 L.Ed.2d 706 (1968), a case in which the Court ordered enforcement of an NLRB remedial order in favor of a union member who had been expelled from his union for having filed charges against his union before exhausting the internal remedies offered by the union’s constitution. The Court wrote the following of section 411(a)(4):
We conclude that "may be required” is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union.
Id. Section 411(a)(4) thus "does not establish a jurisdictional bar to judicial review that may be invoked by union defendants, but simply preserves the discretionary exhaustion doctrine that allowed courts to determine whether pursuit of internal remedies should be required in a given case even before the LMRDA was enacted." Chadwick v. International Bhd. of Elec. Workers, 674 F.2d 939, 942 (D.C.Cir.1982) (per curiam) (citations omitted); see also Clayton v. International Union, United Auto., Aerospace & Agric. Implement Workers, 451 U.S. 679, 689 , 101 S.Ct. 2088, 2095 , 68 L.Ed.2d 538 (1981) (listing factors district courts should consider when deciding whether to require exhaustion of internal union procedures); ante at 1546 n. 24.
Although Congress provided in section 411(a)(4) that unions and district courts may require resort to union remedies for a four-month period, it notably did not require complete exhaustion, when it could easily have done so. Thus, in my view, there is no legitimate basis, consistent with congressional intent, for using section 411(a)(4) to toll the limitations period during the four-month period.
Even assuming that as to Hester’s federal claim against Local 660 the limitations period was tolled for four months, that claim would remain time-barred. Hester did not file his suit against Local 660 until seven months after the statute of limitations had already run. An additional four months during which to file suit could not have rendered Hester’s suit against Local 660 timely.
Some might view this result — Hester’s federal claim against Local 660 is time-barred — as harsh because Hester filed his suit before Davis v. United Auto., Aerospace & Agric. Implement Workers, 765 F.2d 1510 (11th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1284 , 89 L.Ed.2d 592 (1986), was handed down and within what Hester thought was the applicable statute of limitations. See ante at 1544 n. 17. Hester’s trouble with Local 660, however, did not begin until several months after the Supreme Court decided DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 , 103 S.Ct. 2281 , 76 L.Ed.2d 476 (1983), a case that not only foreshadowed Davis , but compelled it. In any event, I believe that we are bound to reach this result by the precedent of the Supreme Court and of this circuit.
. The majority has taken the Proudfoot language discussing when a cause of action accrues in a hybrid suit, Proudfoot, 779 F.2d at 1559 , and applied it in the dissimilar context of a bill-of-rights suit brought by a union member against his union: “Applying Proudfoot to the facts of this case, the timeliness of Hester’s suit depends upon the date upon which Hester knew or should have known of the union’s final action." Ante at 1548.
. See supra note 14.
. The majority states the following: "We find no sufficient reason for applying the substantive rule of limitations from the ‘hybrid’ suit context without also accepting the rule for when that substantive limitations period begins to run.” In my view, this is also a non sequitur. Merely because federal labor policies favor the relatively short limitations period found in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (b) (1982), rather than the longer periods available under state statutes, does not necessarily dictate that the limitations period begins at the same time in all actions brought by union members. The appropriate method by which to determine when the statute of limitations starts running is to pinpoint when the union member’s cause of action accrues. This can only be done by appreciating the nature of the suit the employee wishes to bring. As my analysis suggests, Hester’s suit simply cannot be reasonably analogized to a hybrid suit for purposes of determining when the limitations period begins to run.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8950236. Public record. Not legal advice.