"In this type of hybrid suit, the alleged breaches by the employer and the union may occur at the same time, as opposed to the sequential breaches seen in a more typical hybrid action." Herrera v. Int'l Union, United Automobile, Aerospace and Agric. Implement Workers of America, 858 F. Supp. 1529, 1538 (D. Kan. 1994). For example, an employee may allege that the union breached its duty to represent him fairly during the negotiation of an agreement that affects the employee's rights. Id.
As the Second Circuit recognized, no-docking arrangements have been consistently upheld by the courts as not in violation of § 302, see NLRB v. BASF Wyandotte Corp., 798 F.2d 849, 854–56 (5th Cir.1986); BASF Wyandotte Corp. v. Local 227, 791 F.2d 1046 (2d Cir.1986); Herrera v. Int'l Union, UAW, 73 F.3d 1056 (10th Cir.1996), aff'g & adopting dist. ct. analysis,858 F.Supp. 1529, 1546 (D.Kan.1994); Communications Workers v. Bell Atlantic Network Servs., Inc., 670 F.Supp. 416, 423–24 (D.D.C.1987); Employees' Independent Union v. Wyman Gordon Co., 314 F.Supp. 458, 461 (N.D.Ill.1970). Id.
Under a no-docking clause, the employer agrees that shop stewards may leave their assigned work areas for portions of a day to process employee grievances without loss of pay. By paying production workers for the part-time hours when they leave their regular duties, the company is paying for services not actually rendered for it, since those employees are already receiving their regular hourly wages and benefits for their production line work. Yet, no-docking arrangements have been consistently upheld by the courts as not in violation of Section(s) 302, see NLRB v. BASF Wyandotte Corp., 798 F.2d 849, 854-56 (5th Cir. 1986); BASF Wyandotte Corp. v. Local 227, 791 F.2d 1046 (2d Cir. 1986); Herrera v. International Union, UAW, 73 F.3d 1056 (10th Cir. 1996), aff'g adopting dist. ct. analysis, 858 F. Supp. 1529, 1546 (D. Kan. 1994); Communications Workers v. Bell Atlantic Network Servs., Inc., 670 F. Supp. 416, 423-24 (D.D.C. 1987); Employees' Independent Union v. Wyman Gordon Co., 314 F. Supp. 458, 461 (N.D. Ill. 1970), and Caterpillar does not even seek to have the contract's no-docking clause declared illegal. Moreover, as the union points out, it would be strange indeed if Congress intended that granting four employees two hours per day of paid union leave is permissible, while granting a single employee eight hours per day of that same leave is a federal crime.
Id. After careful review of the record, we adopt the analysis in the Memorandum and Order of the district court. Herrera v. UAW, 858 F. Supp. 1529 (D. Kan. 1994). We therefore AFFIRM the judgment of the district court.
" Adkins v. Int'l Union of Elec., 769 F.2d 330, 336 (6th Cir. 1985); see also Hartwickv. Dist. Lodge 70, 184 F. Supp. 2d 1092, 1100 (D. Kan. 2001) ("The limitations period, however will not be tolled when the employee is inexcusably dilatory with regard to the pursuit of his or her grievance." (citing Herrera v. Int'l Union, 858 F. Supp. 1529, 1541 (D. Kan. 1994))). Thus, for tolling to apply Mayhew must have acted in reasonable good faith, under the circumstances of this case, in waiting until May 31, 2011 to pursue the proper grievance procedure.
The limitation period, however will not be tolled when the "employee is inexcusably dilatory with regard to the pursuit of his or her grievance." Herrera v. International Union, United Auto. Aerospace and Agr. Implement Workers of America, 858 F. Supp. 1529, 1541 (D.Kan. 1994) (citation omitted), aff'd, 73 F.3d 1056 (10th Cir. 1996). The court concludes that the plaintiffs here did not in good faith even attempt to exhaust the grievance procedures and whatever efforts they made in pursuing a grievance do not qualify as diligent under the circumstances.
In a typical case, the limitations period begins to run when the employee learns or should have learned that the union has rejected or abandoned the claims plaintiff has asserted against the employer for a breach of the collective bargaining agreement. Sutherland v. Day Zimmerman, Inc., 894 F. Supp. 1488 (D.Kan. 1995); Herrera v. International Union, 858 F. Supp. 1529 (D.Kan. 1994), aff'd, 73 F.3d 1056 (10th Cir. 1996). From the allegations of plaintiff's complaints and attachments thereto, however, it appears that by the time of the arbitration itself, he not only should have known but did know of the decisions or actions which gave rise to his claim for breach of the duty of fair representation. Thus his claim accrued on October 18, 1996, the date of the arbitration, or at the latest on or shortly after January 3, 1997, when the arbitrator rendered his decision.