SIMON v. KROGER CO.
471 U.S. 1075 (1985)

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U.S. Supreme Court

SIMON v. KROGER CO. , 471 U.S. 1075 (1985)

471 U.S. 1075

Steven D. SIMON
v.
KROGER COMPANY et al
No. 84-1427

Supreme Court of the United States

April 29, 1985

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The petition for a writ of certiorari is denied.

Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

Section 10(b) of the National Labor Relations Act limits the time for filing an unfair labor practice charge with the National

Page 471 U.S. 1075 , 1076

Labor Relations Board. It provides that "no 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 such charge is made." 29 U.S.C. 160(b). The plain words require that a charge be both filed and served within six months of the challenged conduct, and such has long been the Board's interpretation. See, e.g., Old Colony Box Co., 81 N.L.R.B. 1025, 1027 ( 1949). Service may be accomplished merely by mailing a copy of the charge . See 29 CFR 102.113(a) (1984).

In DelCostello v. Teamsters, 462 U.S. 151 (1983), we held that 10(b) governs an employee's suit against his employer for breach of contract and his union for breach of its duty of fair representation. We did not discuss whether that section's requirement of service, as well as filing, within the 6-month period also applies in such a suit. That is the question raised in this petition.

The Kroger Co. (Kroger) discharged petitioner on February 18, 1982. Grievance procedures were unsuccessful, and on July 6, 1982, the union notified petitioner that it would not proceed to arbitration. The following January 3, just within the 6-month period, petitioner filed this 301 action in Federal District Court. See 29 U.S.C. 185. On January 12, after the 6-month period had run, he served a copy of the complaint on Kroger; and on January 25 he served the union. Applying DelCostello, and relying on the plain words of 10(b), the District Court granted both defendants' motions for summary judgment on the ground that the action was time-barred. It also found that petitioner had not filed a timely response to Kroger's motion for summary judgment and that under a local rule he would be deemed not to oppose it.

The Court of Appeals for the Eleventh Circuit affirmed. 743 F.2d 1544 (1984). Referring to the "intent, spirit, and plain language of section 10(b)," it held that a 301 complaint must be both filed and served within the 6-month period. Id., at 1546. It also found that the District Court had properly applied its local rule in treating Kroger's motion for summary judgment as unopposed.

The lower courts agree that a suit in federal court on a federal cause of action is commenced, and the statute of limitations tolled, upon the filing of the complaint. See, e.g., Hobson v. Wilson, 237 U.S.App.D.C. 219, 262, 737 F.2d 1, 44 (1984); Fed.Rule Civ.Proc. 3; 2 J. Moore & J. Lucas, Moore's Federal Practice [471 U.S. 1075 , 1077]


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