Appeal by Robert M. Ellenbogen from an order of the United States District Court for the Southern District of New York (Carter, J.) that granted summary judgment dismissing his 29 U.S.C. § 185 hybrid suit against his employer, appellee Rider Maintenance Corp., for his wrongful discharge and against his union, appellee New York City Taxi Drivers Union Local 3036, S.E.I.U., A.F.L. - C.I.O., for breach of fair representation. The suit was dismissed because the district court held it time-barred under the applicable statute of limitations.
CARDAMONE, Circuit Judge:
This is an appeal by an employee from an order dismissing his hybrid § 301/fair representation suit brought against his employer and union under the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982). Appellant alleges in his complaint seeking reinstatement with back pay that his employer breached the collective bargaining agreement by discharging him and that the union breached its duty of fair representation by refusing to pursue his grievance. The district court dismissed the complaint as time-barred by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), which fixes a six-month time limit on filing of unfair labor practice charges with the National Labor Relations Board and has been held applicable to hybrid fair representation suits under § 301. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983).
The appeal raises a question of first impression in this Circuit: When a federal court borrows the six-month time limitation of § 10(b) of the NLRA for application in a hybrid § 301/fair representation suit, must it also borrow and apply the requirement of § 10(b) that service of the complaint to be completed within the same six-month period?
Frequently, no federal statute of limitation expressly applies and federal courts in civil suits must "borrow" from the most suitable source to bridge this gap in federal law. In this context Polonius' admonition: "neither a borrower, nor a lender be;" for "borrowing dulls the edge of husbandry"*fn1 is sound advice. Federal courts should borrow only what they need from other sources, and rely on their own resources of procedural rules when those serve the intended purposes equally well. While borrowing one time period to fill a particular gap may work well under some circumstances, it may not fit under different circumstances. Such is the case here. Accordingly, we hold that borrowing § 10 (b) for purposes of service of the complaint is unnecessary and that such hybrid actions are governed by the established service requirements of the Federal Rules of Civil Procedure. The order dismissing the complaint is reversed.
The relevant facts of this case are undisputed. Richard Ellenbogen was employed as a taxicab driver for Rider Maintenance Corp. (Rider) for more than eight years and was represented by the New York City Taxi Drivers Union, Local 3036, S.E.I.U., AFL-CIO (Union). On November 23, 1983 Ellenbogen was discharged. Within a week, he met with a Local 3036 Vice President regarding reinstatement. Subsequently, Ellenbogen was notified that the Union would be unable to secure his reinstatement and that no further action would be taken.
Ellenbogen then filed a pro se complaint in the United States District Court for the Southern District Court of New York (Carter, J.) against both Rider and the Union on May 18, 1984, less than six months after his November 23 discharge. He mailed the pleadings to the Union on September 11, 1984 together with notice and acknowledgments in compliance with Fed. R. Civ. P. 4(c) (2) (C) (ii). The Union signed and returned the documents on September 14, 1984. There is no dispute that Ellenbogen filed his complaint within six months after the statute of limitations began to run on his cause of action, and though service of process was not completed within this six month period, it was effected within the 120-day grace period provided for completion of service under Rule 4(j). The Union moved at trial for summary judgment dismissing the complaint on the ground that the action was commenced after the expiration of the statute of limitations period prescribed by § 10(b) of the NLRA.
The district court in a written opinion relying on DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), and Walker v. Armco Steel Corp., 446 U.S. 740, 64 L. Ed. 2d 659, 100 S. Ct. 1978, (1980), held that the action was time barred under § 10 (b) of the NLRA because this section specifically provided a six-month service requirement, and that such requirement is an integral part of the time bar imposed under § 10(b). Ellenbogen v. Rider Maintenance Corp., 621 F. Supp. 324 (S.D.N.Y. 1985). Section 10(b) of the NLRA, 29 U.S.C. § 160(b) states in relevant part:
[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom the charge is made . . . .
The district court further relied on the fact that the majority of decided cases, see Howard v. Lockheed Georgia Co., 742 F.2d 612, 614 (11th Cir. 1984); Thompson v. Ralston Purina Co., 599 F. Supp. 756, 758 (W.D. Mich. 1984), Hoffman v. United Markets, Inc., 117 LRRM 3229-31 (N.D. Cal. 1984), have construed DelCostello to require filing and service within the six-month limitation period. But see LaTondress v. Local No. 7, IBT, 102 F.R.D. 295, 296-97 (W.D. Mich. 1984).
Since the district court handed down its opinion, three other circuits also have held that in a hybrid § 301/fair representation suit, a court must borrow both the six-month filing and service requirements. See Gallon v. Levin Metals Corp., 779 F.2d 1439, 1441 (9th Cir. 1986); West v. Conrail, 780 F.2d 361, 363 (3d Cir. 1985); Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir. 1984). Macon v. ITT Continental Baking Co., Inc., 779 F.2d 1166, 1170-72, (6th Cir. 9 1985), cert. denied, 481 U.S. 1013, 107 S. Ct. 1885, 95 L. Ed. 2d 493 (1986) and Thomsen v. United Parcel Service, 792 F.2d 115 (8th Cir. 1986), have held to the contrary. Upon carefully considering this question, we conclude that DelCostello does not mandate a departure from the general procedural rule that an action is commenced and the statute tolled simply upon the filing of a complaint with the court. Fed. R. Civ. P.3. Bomar v. Keyes, 162 F.2d 136, 140-41 (2d Cir.), cert. denied, 332 U.S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947); Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 44-45 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985); ...