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The full case caption appears at the end of this opinion. LOKEN, Circuit Judge. In September 1995, American National Can Company (“ANC”) permanentlyclosed its Gateway plant in Pevely, Missouri, and transferred Terry E. Barlow andother employees to its plant in St. Louis. In November 1995, many St. Louis Plantemployees, including Barlow, were laid off as part of a reduction in force. In February1997, Barlow and others commenced this action against ANC for breach of collectivelybargained agreements, and against a union, Steelworkers Local No. 3628 (“Local3628″), for breach of its duty of fair representation. Plaintiffs allege they were entitled.to 104 weeks of supplemental unemployment benefits after the layoffs, instead of the 53weeks of benefits ANC paid. The district court [FOOTNOTE 1] dismissed the action as time-barred, andplaintiffs appeal. Reviewing the grant of summary judgment de novo and the evidence inthe light most favorable to plaintiffs, we affirm. See Schuver v. MidAmerican EnergyCo., 154 F.3d 795, 799-800 (8th Cir. 1998) (standard of review). 1. The Legal Setting. Plaintiffs’ breach-of-contract claim against ANC arises under� 301 of the Labor Management Relations Act, 29 U.S.C. � 185. To recover against anemployer under � 301 for breach of a collectively bargained agreement, employees mustfirst prove that their union breached its duty of fair representation. See Vaca v. Sipes, 386U.S. 171, 186 (1967). This “hybrid” � 301/fair representation action is governed by thesix month statute of limitations found in � 10(b) of the National Labor Relations Act, 29U.S.C. � 160(b). See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169-72 (1983). Because the union’s breach of duty is a necessary element of a � 301 claim against theemployer, the employee’s claims against both typically accrue, for statute of limitationspurposes, when the union’s breach of duty injures the employee. See Gustafson v.Cornelius Co., 724 F.2d 75, 79 & n.9 (8th Cir. 1983). For example, in the common casewhere a union is accused of mishandling an employee’s legitimate grievance, or ofrefusing to take the grievance to arbitration, the six-month limitation period begins to runagainst the employer and the union when the grievance is rejected, or when the uniondecides not to pursue it. See Livingstone v. Schnuck Market, Inc., 950 F.2d 579, 583 (8thCir. 1991); Tripp v. Angelica Corp., 921 F.2d 794, 795 (8th Cir. 1990); Butler v. LocalUnion 823, Int’l Bhd. of Teamsters, 514 F.2d 442, 449 (8th Cir.), cert. denied, 423 U.S.924 (1975). Thus, the statute of limitations issue in thiscase requires careful analysis of the alleged breach of Local 3628′s duty of fairrepresentation to the plaintiffs. 2. The Factual Setting. The supplemental unemployment (“SUB”) benefits in questionwere mandated by a Supplemental Unemployment Benefits Agreement entered into byANC and Local 3628′s parent union, the United Steelworkers of America (the “USWA”),and incorporated by reference in Article 23 of their “Master” collective bargainingagreement. Section 2 of the SUB Agreement governed the duration of SUB benefits.Under � 2.4(b), which is not a model of clarity, laid-off employees who were eligible forpension benefits were entitled to 104 weeks of SUB benefits, except they were limited to53 weeks of SUB benefits if (i) there was a “permanent plant shutdown,” or (ii) they were”eligible for 70/75 or Rule-of-65 retirement” and were advised by ANC that “return toactive employment is unlikely.” At the time in question, all the plaintiffs in this uncertifiedclass action were thirty-year ANC employees eligible for pension benefits. Thus, � 2.4(b)seems to provide that if plaintiffs were laid off from the permanently shut down GatewayPlant, they were entitled to 53 weeks of SUB benefits; but if they were laid off from theSt. Louis Plant, which was not permanently shut down, they might be eligible for up to104 weeks of SUB benefits. A 1978 “Accretion Agreement” between ANC, Local 3628, and the USWA governedemployees, such as plaintiffs, who transferred from the St. Louis Plant to the newGateway Plant. Section F of that Agreement provided: “in the event an employee withten (10) or more years of accredited service is laid off from either plant, such employeeshall be placed in the other plant provided the employee has the requisite seniority.”When ANC closed the Gateway Plant in September 1995, it invoked Section F intransferring plaintiffs to the St. Louis Plant. Steelworkers Local 8795, representingGateway Plant employees, filed a grievance, arguing that “the Master Agreement takesprecedence over the Accretion Agreement” and therefore Gateway.employees “should not have been transferred” and were entitled to Master Agreementplant closing benefits. The St. Louis Plant layoffs occurred in November 1995, while this grievance waspending. At a December 1995 meeting, ANC and the union provided affectedemployees written estimates of the SUB benefits they would receive. The estimateprovided plaintiff Barlow stated in part: PENSION You are eligible for a Rule of 70/75 Pension effective December 1,1996. . . . You must apply for this pension benefit. Benefits will notautomatically start. Please apply approximately 90 days prior to the datebenefits are to begin. * * * * * SUPPLEMENTAL UNEMPLOYMENT BENEFIT You are eligible for 53 weeks of Guaranteed SUB. Neither Barlow nor any other plaintiff asked Local 3628 to file a grievance challengingANC’s tentative December 1995 SUB benefits determinations. ANC and Local 3628argue that plaintiffs’ claims are time-barred because the six-month statute of limitationscommenced running with these determinations, as the National Labor Relations Boardconcluded in dismissing plaintiffs’ subsequent unfair labor practice charges. But therehad been no conceivable breach of the duty of fair representation by Local 3628 at thispoint in the process. Thus, if plaintiffs’ claims were barred at this time, it was becausethey failed to exhaust contract remedies — an issue not addressed by the district court –not because the claims were time-barred. Moving on in this sequence of events, in January 1996, Local 3628 filed agrievance reciting that ANC was treating all Gateway employees “as plant closingemployees,” and protesting that “no employee from Gateway should have beentransferred to St. Louis [in a manner that] displaced anyone from the St. Louis plant.”As a remedy, Local 3628 urged that Gateway Plant employees be permitted to exercisean option to receive Master Agreement plant closing benefits. On February 12, 1996,ANC and the USWA entered into a written settlement of “all issues regardingapplication of the �Accretion Agreement’ . . . to the Gateway plant closing and the St.Louis restructuring.” Though it did not explicitly resolve SUB benefits duration issues,that agreement addressed pension and SUB benefit eligibility for Gateway Plantemployees who had transferred to the St. Louis Plant and been laid off: 1. Those employees of the Gateway facility who are currently on layoff,affected by the shutdown of that facility, whether having worked at St.Louis or not, subsequent to the closing of the Gateway plant onSeptember 3, 1995, have the option pursuant to the . . . PensionAgreement between [ANC] and the [USWA] to retire from [ANC],pursuant to the eligibility requirements contained in that document, or,alternatively if they so desire, remain in their current layoff status,collecting benefits for which they may otherwise be eligible, for instance,SUB, and exercise their pension options to which [they are] eligible inaccordance with the provisions of the Agreement. On February 16, 1996, Local 3628 held a meeting at which representatives from theUSWA explained to union members “their decision on the accretion agreement, andhow it ha[d] been applied to the St. Louis plant.” At least one plaintiff was recordedas having attended this meeting. 3. The Statute of Limitations for Plaintiffs Other Than Terry Barlow.Plaintiffs’ complaint alleges that Local 3628 “decided to show favoritism” to St. LouisPlant employees who had not been transferred from the Gateway Plant by “secur[ing]for these workers . . . the full 104 weeks of supplemental employment benefits.” Onappeal, plaintiffs expand on this theory by contending that Local 3628′s bias againstplaintiffs was revealed in its January 1996 grievance, which protested the transfer of laid-offGateway employees to the St. Louis Plant, and in the February 1996 grievancesettlement with ANC “pursuant to which Plaintiffs are apparently considered victims ofa plant closing and not a layoff.” This is a claim for class-wide relief, premised on thenotion that Local 3628 “sold out” the interests of Gateway Plant employees who weretransferred to the St. Louis Plant under the Accretion Agreement. [FOOTNOTE 2] As the district court recognized, the difficulty with this claim is that it accrued whenLocal 3628 (represented by the USWA) entered into the grievance settlement agreementin February 1996. “[A]n employee’s cause of action accrues when the grievanceprocedure is exhausted or otherwise breaks down to the employee’s disadvantage.” Cookv. Columbian Chem. Co., 997 F.2d 1239, 1241 (8th Cir. 1993) (internal quotationomitted). The settlement agreement purported to resolve “all issues regarding applicationof the �Accretion Agreement’ . . . to the Gateway plant closing and the St. Louisrestructuring.” Plaintiffs argue they did not know the significance of the agreementbecause it settled a grievance not filed on their behalf and failed to disclose they wouldreceive only 53 weeks of SUB benefits. But plaintiffs were members (or formermembers) of Local 8795 and Local 3628. They were charged with knowledge that theirlocal unions had filed grievances to clarify their rights in a complex situation, and it isundisputed the local unions made an effort to explain the settlement to their members. If plaintiffs believed that Local 3628 had negotiated asettlement contrary to the interests of plaintiffs as a class, it was incumbent upon them tochallenge the settlement with a � 301/fair representation lawsuit filed within six monthsof that agreement. If plaintiffs instead concluded that the prior grievances had beensettled in a manner that left uncertain the rights of Gateway Plant employees as a class toSUB benefits, it was incumbent upon plaintiffs to initiate a new collective grievance toclarify those rights. So far as the record on appeal reveals, with the exception of TerryBarlow no plaintiff requested Local 3628 to initiate such a grievance. Therefore, theclaims of all plaintiffs other than Barlow are time-barred because they were not filedwithin six months of the February 1996 settlement agreement. [FOOTNOTE 3] 4. Plaintiff Terry Barlow. Plaintiff Barlow’s individual situation presents a morecomplex statute of limitations issue. When Barlow was told in December 1995 he wouldbe paid 53 weeks of SUB benefits, he complained. ANC and Local 8795 representativestold him to contact ANC in Chicago. Barlow alleges that he did so and got no responseuntil May 1996 (long after the February grievance settlement), when Al Ekl of ANC orallyinformed Barlow he was entitled to 104 weeks of SUB benefits. Then in July, Barlow”heard from some other guys” that ANC would limit his SUB benefits to 53 weeks”because we were considered to have been the victims of a plant closing.” Barlowcontacted Ekl again and was referred to an ANC labor relations specialist. He was finallyadvised in a September 4, 1996, ANC letter that he would only be paid 53 weeks of SUBbenefits. Barlow promptly wrote the USWA,.-8-demanding that it file a grievance in his behalf for an additional 51 weeks of SUBbenefits. Counsel for the USWA formally responded on January 16, 1997, informingBarlow he had received all the SUB benefits to which he was entitled and the Unionwould therefore do nothing further in his behalf. Barlow argues that the six-month statuteof limitations did not begin to run until this January 16, 1997, union response, in whichcase his lawsuit was timely filed on February 28, 1997. As we have explained, the February 1996 grievance settlement purported to resolveclass-wide issues regarding the transfer of Gateway employees to St. Louis and thesubsequent layoffs. However, that agreement did not address more specific questionsregarding the duration of SUB benefits to particular employees. For example, ANC’sSeptember 4 letter to Barlow explained: According to your age, service, and the permanent plant shutdown of the Gatewayfacility, you are eligible for a Rule 70/75 retirement effective December 1, 1996.Therefore you are not eligible for any SUB benefits on or after December 1, 1996.This is in accordance with the [February 1996] agreement between the [USWA] and[ANC] regarding the application of the “Accretion Agreement” to the Gateway plantclosing and the St. Louis restructuring. This determination may have been “in accordance with” the February settlement, but thatwould not be apparent to an individual employee from the face of the settlementagreement. From December 1995 to January 1997, Barlow bombarded ANC and theunions with complaints urging that they clarify his right to 104 weeks of SUB benefits.Those complaints met with buck-passing, delays, and inconsistent responses from ANCand union representatives before ANC finally issued its negative September 1996determination of his individual claim. Viewing the case from this narrow focus, theunion’s alleged breach of duty occurred when the USWA refused to file a grievancechallenging that determination. And because an aggrieved employee must exhaust or.-9-attempt to exhaust non-futile contract remedies before filing a � 301/fair representationlawsuit, that breach of duty should be deemed to occur, for statute of limitations purposes,when the USWA responded to Barlow’s request that it file a grievance, at least at thesummary judgment stage when we must view the record in the light most favorable toBarlow. All this supports his contention that the statute of limitations was tolled or didnot commence running as to his individual claim until the USWA’s January 1997response. There is nonetheless a fatal flaw in this theory of Barlow’s individual claim — it was notpleaded. Barlow alleged that Local 3628 breached its duty of fair representation bydiscriminatorily seeking more SUB benefits for St. Louis Plant employees who had notbeen transferred in from the Gateway Plant. But ANC denied Barlow’s individual claimbased upon its interpretation of the interplay between the Accretion Agreement, the SUBAgreement, and the Pension Agreement. Barlow addressed his complaint against thatdetermination to the USWA, not Local 3628, and counsel for the parent union sent hima lengthy response agreeing with ANC’s interpretation of those agreements and explainingwhy that interpretation resulted in his SUB benefits terminating on December 1, 1996,while the SUB benefits of those continuously employed at the St. Louis Plant continuedfor another year. There is nothing in the record linking that response to plaintiffs’allegations of a breach of duty by Local 3628. Thus, while Barlow might have had anindividual � 301/fair representation claim that was not time-barred in February 1997, sucha claim was not made a part of this lawsuit. Accordingly, the district court properlygranted Local 3628′s motion for summary judgment. Finally, plaintiffs argue that their claims against ANC remain viable because “[t]heDistrict Court did not enter any judgment on the claims against the company.” Wedisagree. The district court entered judgment on February 4, 1998 “in favor of defendantsand against plaintiffs.” The court subsequently refused to accept for filing.-10-ANC’s motion for summary judgment. In these circumstances, it is clear the court”intended its decision to be final” as to both defendants. Goodwin v. United States, 67F.3d 149, 151 (8th Cir. 1995). The judgment of the district court is affirmed. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. :::FOOTNOTES::: FN1 The HONORABLE GEORGE F. GUNN, JR., United States District Judge forthe Eastern District of Missouri, who to our great regret passed away after issuing hisdecision in this case. FN2 It is interesting and perhaps ironic that the Gateway employees’ union, Local8795, filed a grievance objecting to their transfer to the St. Louis Plant. But it was filedbefore the St. Louis Plant layoffs presented transferred Gateway employees a chanceto be paid more weeks of SUB benefits by reason of the transfers. The record does notreveal whether Local 8795 adhered to its initial position after the St. Louis Plantlayoffs. This dilemma may be one reason the USWA as parent union stepped in tonegotiate a settlement with ANC. We note that plaintiffs have accused only Local 3628of breaching the duty of fair representation. FN3 Plaintiffs suggest in their briefs, without presenting the issue, that the doctrinesof equitable estoppel and equitable tolling should apply to extend the six-month statuteof limitations. We disagree. There is no evidence of “positive misconduct” by Local3628 or ANC that was deliberately designed to lead plaintiffs not to challenge, withinthe statute of limitations period, either the settlement agreement, or the position takenby Local 3628 regarding the transfer of Gateway Plant employees. Skyberg v. UnitedFood & Commercial Workers Int’l Union, 5 F.3d 297, 302 (8th Cir. 1993).
TERRY E. BARLOW, ET AL., Plaintiffs – Appellants, v. AMERICAN NATIONAL CAN COMPANY; UNITED STEELWORKERS OF AMERICA, LOCAL UNION NO. 3628, Defendants – Appellees. No. 98-2094 United States Court of Appeals for the Eighth Circuit Appeal from the United States District Court for the Eastern District of Missouri. Submitted: December 16, 1998 Filed: May 5, 1999 Before BEAM, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
 
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