[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-14636

Non-Argument Calendar

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D.C. Docket No. 3:16-cv-01194-BJD-PDB

ALBERT STEWARD, 

 Plaintiff-Appellant,

 versus

INTERNATIONAL LONGSHOREMAN'S ASSOCIATION, LOCAL NO. 1408, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 7, 2020)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Albert Steward, proceeding pro se, appeals the dismissal of his action, brought 

under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151, for failure to 

state a plausible claim to relief. He contends that the district court erred in 

dismissing his complaint in part as barred by the statute of limitations and in part for 

failure to allege sufficient facts showing that the union of which he was a member, 

the International Longshoreman’s Association, Local No. 1408, violated its duty of 

fair representation to him. After careful review, we affirm. 

I.

On September 16, 2016, Steward, represented by counsel, filed an action 

against the union for breach of the duty of fair representation under the NLRA. 

Steward’s counsel withdrew and, sometime later, Steward filed a pro se fourth 

amended complaint, which became the operative complaint. 

In his fourth amended complaint, Steward claimed that the union breached the 

duty of fair representation owed to him as a union member under 29 U.S.C. § 151. 

Construed liberally, the complaint alleged that the union breached its duty in three 

ways. First, Steward alleged, the union president refused to dispatch him for service 

in accordance with his position on the port seniority list from 2004 to 2006. Second, 

according to Steward, the union president refused to process his grievances 

regarding three different matters: (a) dispatching issues from 2004 to 2006; (b) the 

port seniority list posted on November 17, 2014, which showed that he had lost his 

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previous port seniority; and (c) his suspension by Coastal Great Southern in June 

2015. Finally, Steward alleged that he was injured when the union failed to “include 

him when amnesty was initiated in April or late May 2016.”

In a report and recommendation (“R&R”), a magistrate judge recommended 

that the district court dismiss Steward’s claims. The magistrate judge found that a 

six-month statute of limitations applied to his claims for breach of the duty of fair 

representation. Applying this limitations period, the magistrate judge concluded that 

Steward’s claims based on the refusal to dispatch him and to process his grievances 

were time barred because 

Steward knew or should have known before March 16, 2016 (six 

months before September 16, 2016, when he filed the complaint), that 

the union was taking no action on grievances made from 2004 to 2006 

and from 2014 to 2015, including his grievances over the alleged 

change to his seniority in November 2014 and his suspension by 

Coastal Great Southern in June 2015.

Steward’s remaining claim relating to amnesty in April or May 2016 “d[id] not 

appear barred by the six-month limitations period,” according to the magistrate 

judge, but he failed to state a plausible claim that the union acted arbitrarily, 

discriminatorily, or in bad faith. Finally, the magistrate judge recommended denying 

leave to amend, noting that Steward had been given five opportunities to amend his 

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complaint. The district court adopted the R&R over Steward’s objections and 

dismissed his claims with prejudice.1

 This appeal followed. 

II.

We review de novo the dismissal of a complaint for failure to state a claim, 

including on statute-of-limitations grounds, accepting the allegations in the 

complaint as true and construing all reasonable inferences in the plaintiff’s favor. 

La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). We liberally 

construe pleadings filed by pro se parties. Powell v. Lennon, 914 F.2d 1459, 1463 

(11th Cir. 1990). 

“A dismissal for failure to state a claim on statute of limitations grounds is 

appropriate only if it is apparent from the face of the complaint that the claim is timebarred.” United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 

1085 (11th Cir. 2018) (quotation marks omitted). To avoid dismissal for failure to 

state a claim, “[a] plaintiff must plausibly allege all the elements of the claim for 

relief. Conclusory allegations and legal conclusions are not sufficient; the plaintiffs 

must state a claim to relief that is plausible on its face.” Feldman v. Am. Dawn, Inc., 

849 F.3d 1333, 1339–40 (11th Cir. 2017) (citation and quotation marks omitted).

1 It appears that the parties mediated the case and reached some kind of settlement, but the 

court ultimately did not review the settlement, despite Steward’s request.

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Under the NLRA, when a union serves as the exclusive representative of 

employees in a bargaining unit, the union has a duty “to represent all members 

fairly.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998). A union 

breaches the duty of fair representation when its “conduct toward a member . . . is 

arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). 

“When the union member sues the union for breaching its duty of fair 

representation, the six-month statute of limitations established in section 10(b) of the 

NLRA, 29 U.S.C. § 160(b), applies.” Hechler v. Int’l Bhd. of Elec. Workers, 834 

F.2d 942, 944 (11th Cir. 1987). The six-month period begins to run “when plaintiffs 

either were or should have been aware of the injury itself.” Benson v. Gen. Motors 

Corp., 716 F.2d 862, 864 (11th Cir. 1983). For example, when the injury concerns 

the loss of seniority, the plaintiff “should have known of this loss when the seniority 

lists were posted.” Id. However, if the employee pursues internal union remedies, 

the statute of limitations is tolled and begins to run when the employee “knew or 

should have known of the Union’s ‘final action,’ i.e. the point where the grievance 

procedure was exhausted or otherwise broken down.” Hester v. Int’l Union of 

Operating Eng’rs, 941 F.2d 1574, 1577 (11th Cir. 1991) (quotation marks omitted). 

Steward maintains that the district court erred in dismissing the majority of 

his claims as time barred. In his view, the “continuing violation doctrine” applies to 

make his claims timely because he alleged “repeated injuries,” the last of which 

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arises from the union’s “failure[] to include him with the other eight union 

member[s] when amnesty was created on the night [of] March 23, 2016.” 

When a union member alleges repeated injuries, § 160(b) does not bar legal 

action so long as the “complaint is filed within six months of one such [injury], 

notwithstanding the fact that more than six months passed between the earlier 

[injuries] and the filing of the charge.” NLRB v. Preston H. Haskell Co., 616 F.2d 

136, 140–41 (5th Cir. 1980).2 We explained that “[e]ach [injury] represents an 

independent unfair labor practice that does not derive its illegal character from 

earlier violations and, as long as one discrete violation occurred within six months 

of the filing of charges, legal action is timely.” Id. at 141. Thus, “section 10(b) does 

not bar an action where occurrences within the six-month limitations period in and 

of themselves may constitute, as a substantive matter, unfair labor practices,” even 

if “evidence of events outside the [160](b) period” is used to prove the “true 

character” of that unfair labor practice. Id. at 139 (quotation marks omitted). 

Here, the district court properly dismissed the majority of Steward’s claims 

as barred by § 160(b)’s six-month limitations period. As the R&R explained, 

Steward knew or should have known before March 16, 2016 (six 

months before September 16, 2016, when he filed the complaint), that 

the union was taking no action on grievances made from 2004 to 2006 

and from 2014 to 2015, including his grievances over the alleged 

2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), we adopted as binding 

precedent all decisions of the former Fifth Circuit issued before October 1, 1981. 

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change to his seniority in November 2014 and his suspension by 

Coastal Great Southern in June 2015.

At the very latest, Steward knew that the grievance procedure concerning these 

matters was exhausted or had broken down by December 2015, when, according to 

the fourth amended complaint, he “made several attempts to have a grievance 

hearing and was denied” by the union president. See Hester, 941 F.3d at 1577. So 

even if we assume that the six-month statute of limitations was tolled until that “final 

action,” it is apparent from the face of the fourth amended complaint that Steward’s 

claims alleging unlawful labor practices before March 16, 2016, are time barred. See 

Hunt, 887 F.3d at 1085. 

Steward’s attempt to resurrect these claims through a theory of “repeated 

injuries” is unavailing. Steward points to the union’s failure to include him when it 

granted amnesty to certain members and restored their seniority. The grant of 

amnesty appears to have occurred either on March 23, 2016, according to Steward’s 

brief on appeal, or in April or May 2016, according to the fourth amended complaint. 

In either case, Steward alleged a discrete breach of the duty of fair representation 

that occurred within the six-month limitations period. As the district court found, 

this claim appears to be timely. But the fact that this claim is timely does not mean 

that Steward’s other claims are timely as well, because the alleged unlawful labor 

practices at issue in those claims occurred outside of § 160(b)’s six-month period. 

See Preston H. Haskell, 616 F.2d at 139–41. Legal action is not barred altogether 

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in this circumstance, but it is limited to the alleged unfair labor practice that occurred 

within the six-month limitations period. 

Turning to Steward’s claim regarding the failure to grant him amnesty, we 

agree with the district court that the fourth amended complaint does not plausibly

establish a breach of the union’s duty of fair representation. Steward argues that his 

allegations show that the union president treated him differently than other union 

members. But he provides no details from which a plausible inference could be 

drawn that the union acted arbitrarily, discriminatorily, or in bad faith in doing so. 

See Vaca, 386 U.S. at 190. Steward alleged that certain union members were granted 

amnesty while he was not. But as the magistrate judge noted, “[h]e alleges no facts 

explaining why he should have been given amnesty or why it was incorrect or 

improper to give others amnesty.” Because this claim is based on “conclusory 

allegations and legal conclusions,” Steward did not state a plausible claim to relief. 

Feldman, 849 F.3d at 1339–40. 

Finally, Steward asserts in passing that the district court should have waited 

until discovery was completed and that it improperly ignored his motion to compel. 

But we have held that “[f]acial challenges to the legal sufficiency of a claim or 

defense, such as a motion to dismiss based on failure to state a claim for relief, should

. . . be resolved before discovery begins.” Chudasama v. Mazda Motor Corp., 123 

F.3d 1353, 1367 (11th Cir. 1997). Neither the parties nor the court have any need 

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for, or right to, discovery before the court rules on such a motion. Id. Because the 

court properly granted the motion to dismiss, no discovery was warranted. 

For these reasons, we affirm the dismissal with prejudice of Steward’s fourth 

amended complaint. 

AFFIRMED.

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