Opinion
December 5, 1985
Appeal from the Supreme Court, Schenectady County (Dier, J.).
After plaintiff's employment with the State Department of Taxation and Finance was terminated, and after his CPLR article 78 proceeding seeking reinstatement was dismissed for failure to pursue an available grievance procedure, plaintiff commenced this action against defendant union and its president, alleging that the union had violated its duty of fair representation by failing to assist plaintiff in filing a grievance. This court affirmed Special Term's denial of defendants' motion to dismiss the complaint for failure to state a cause of action ( 92 A.D.2d 1054) and, thereafter, defendants moved to amend the answer to include as a defense the Statute of Limitations. The motion to amend was granted. Plaintiff then moved to reargue and defendants cross-moved for summary judgment dismissing the complaint as untimely. Special Term granted the motion to reargue, adhered to its prior decision authorizing amendment of the answer and granted defendants' summary judgment motion. We affirm.
In the recent case of Del Costello v Teamsters ( 462 U.S. 151), the United States Supreme Court ruled that the most appropriate Statute of Limitations to be applied to a suit that alleges both a breach of a collective bargaining agreement by the employer and a breach of the duty of fair representation by a union is the Federal six-month period of limitation for filing an unfair labor practice with the National Labor Relations Board. Plaintiff contends that since his action is against the union only, Del Costello is not controlling and the six-month period should not be applied. This contention is meritless.
In Del Costello, the court noted that, while a suit against the employer and the union, "as a formal matter, comprises two causes of action * * * `the two claims are inextricably interdependent'" (id, p. 164, quoting United Parcel Serv. v Mitchell, 451 U.S. 56, 66-67). The suit against the employer rests on Labor Management Relations Act § 301, while the suit against the union is "for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act" (id., p. 164 [footnote omitted]). Thus, the court explained "[t]he employee may, if he chooses, sue one defendant and not the other; but the case * * * is the same whether he sues one, the other" or both (id., p. 165). We conclude, therefore, that where an employee claims that the union breached the duty of fair representation by mishandling the grievance/arbitration proceedings, the appropriate Statute of Limitations is the six-month period for filing an unfair labor practice, whether the employee sues both the employer and the union or the union alone (Erkins v United Steelworkers, 723 F.2d 837, cert. denied 467 U.S. 1243; Turco v Local Lodge 5, 592 F. Supp. 1293). We also reject plaintiff's claim that the Del Costello holding should not be applied retroactively (see, Callens v Simmons Mach. Tool Corp., 110 A.D.2d 994, 995).
Order affirmed, with costs. Kane, J.P., Main, Casey, Yesawich, Jr., and Harvey, JJ., concur.