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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GEORGE THIBODEAUX

Plaintiff,

v.

BAY AREA BUILDING MATERIAL 

TEAMSTERS, LOCAL 853,

Defendant.

Case No. 17-cv-00188-MEJ

ORDER RE: MOTION TO DISMISS

Re: Dkt. No. 11

INTRODUCTION

Plaintiff George Thibodeaux brings this action alleging (1) breach of contract, (2) breach 

of implied covenant for good faith and fair dealing, (3) intentional misrepresentation, and (4) 

negligent misrepresentation. Pending before the Court is Defendant Bay Area Building Material 

Teamsters, Local 853’s (“Defendant,” “Local 853,” or “Teamsters”) Motion to Dismiss pursuant 

to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 11. Plaintiff filed an Opposition (Dkt. No. 

20), and Defendant filed a Reply (Dkt. No. 28). The Court finds the matter suitable for disposition 

without a hearing. See Civ. L.R. 7-1(b). Having considered the parties’ positions, the relevant 

legal authority, and the record in this case, the Court GRANTS Defendant’s Motion for the 

reasons set forth below.

BACKGROUND

For twenty years, Plaintiff was employed as a commercial driver by Central Concrete 

Supply Co. and was a member of Local 853. Compl. ¶ 1, Dkt. No. 1, Ex. A. Central Concrete, 

Local 853, and Plaintiff are governed by the terms of a “written agreement” that prevents 

terminating an employee without just cause. Id. ¶¶ 10-11. Plaintiff alleges Central Concrete 

terminated him without just cause in 2013. Id. ¶ 14. The agreement provides that all disputes 
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arising under the terms of the agreement “shall be resolved” through an escalating dispute 

resolution procedure. Id. ¶ 20. In the first step, the dispute may be taken up with local 

management at the discretion of the employee; however, any formal dispute shall be taken up by 

the local union in the locality with the employer. Id. If the union and the employer are unable to 

resolve the dispute, the second step requires the dispute to be referred to the Board of Adjustment. 

Id. If the Board of Adjustment fails to resolve the dispute, at the third step, the dispute “shall be 

submitted to an impartial arbitrator upon the request of either party.” Id. Plaintiff alleges he 

requested Local 853 take up a formal dispute with his employer; Local 853 did so. Id. ¶¶ 14-15. 

When the dispute was not resolved, the Board of Adjustment conducted a hearing. Id. ¶ 17. After 

the Board of Adjustment failed to resolve the dispute, Local 853 wrote Plaintiff and represented 

that the “grievance was final and binding. . . . The union has exhausted its defense of your 

termination under the collective bargaining agreement [‘CBA’].” Id. ¶¶ 17, 18. After Plaintiff 

discovered Local 853’s statement was false, he requested Defendant submit his dispute to an 

impartial arbitrator pursuant to the terms of the agreement. Id. ¶¶ 18-19. Plaintiff alleges 

Defendant did not submit his dispute to an impartial arbitrator. Id. ¶ 20.

Plaintiff initiated this action in California Superior Court against Local 853 alleging four 

state law claims: breach of contract, breach of the covenant of good faith and fair dealing, 

intentional misrepresentation, and negligent misrepresentation. See Compl. Defendant removed 

the action to this Court, asserting the Complaint alleges a breach of the duty of fair representation, 

a claim that arises under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., a 

federal question that gives the Court subject matter jurisdiction. See Not. of Removal ¶ 3. The 

Court found Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), 

preempted Plaintiff’s claims, and denied Plaintiff’s motion to remand the action: 

The Court finds Local 853 properly removed the action on the 

grounds that Plaintiff’s claims are founded on rights created by the 

CBA, or alternatively, substantially dependent on the CBA. 

Plaintiff alleges Local 853 failed to submit his dispute to an 

independent arbitrator as required by the CBA, thereby breaching 

the terms of the CBA and the implied covenant of good faith and 

fair dealing, and misrepresented the terms of the CBA in writing. 

As such, Local 853 “had a right to remove the action on the grounds 

of LMRA preemption.” Medina v. SEIU-United Healthcare 
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Workers W., 2013 WL 3157923, at *3 (N.D. Cal. June 20, 2013); 

see also Adkins [v. Mireles], 526 F.3d [531,] 539 [(9th Cir. 2008)]. 

Order Denying Mot. to Remand at 8-9 (“Remand Order”), Dkt. No. 19.

Defendant now asks the Court to dismiss the entire action on the ground Plaintiff’s claims 

are barred by the applicable six-month statute of limitations. See Mot.

LEGAL STANDARD

Under Rule 12(b)(6), a party may file a motion to dismiss based on the failure to state a 

claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a 

complaint as failing to allege “enough facts to state a claim to relief that is plausible on its face.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a 

“probability requirement” but mandates “more than a sheer possibility that a defendant has acted 

unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations 

omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual 

allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the 

non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 

2008). “[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of 

sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., 

534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citations omitted); see also 

Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a 

claim on the basis of a dispositive issue of law”). 

Even under the liberal pleading standard of Rule 8(a)(2), under which a party is only

required to make “a short and plain statement of the claim showing that the pleader is entitled to 

relief,” a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of 

a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.) 

“[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 

dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 

F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply 

recite the elements of a cause of action, but must contain sufficient allegations of underlying facts 

to give fair notice and to enable the opposing party to defend itself effectively”). The court must 
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be able to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 663. “[D]etermining whether a complaint states a plausible claim [for relief] is 

[a] context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Id. at 663-64.

If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no 

request to amend the pleading was made, unless it determines that the pleading could not possibly 

be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 

banc) (internal quotation marks and citations omitted).

DISCUSSION

A. Arguments of the Parties

Defendant argues, and this Court has already found, that Section 301 of the LMRA 

preempts Plaintiff’s state-law claims because each claim is substantially dependent on analyzing 

the CBA. See Mot. at 3-4; Remand Order at 8-9.

1 As such, Defendant argues Plaintiff’s claims 

are time-barred under the applicable six-month statute of limitations the Court should borrow from 

the NLRA. Id. at 5; see 29 U.S.C. § 160(b). 

Plaintiff argues his claims are timely because Section 301 borrows the most analogous

statute of limitations from the forum state, which Plaintiff contends is California’s four-year 

period for breach of contract claims. Opp’n at 2-3 (citing cases). Plaintiff contends his claims 

nevertheless are timely under the six-month NLRA statute of limitations because Defendant 

 

1

The Court found:

Plaintiff alleges the “tripartite” relationship between him, Local 853, 

and his employer is governed by the “Agreement.” Compl. ¶ 10. 

He quotes Sections 19 and 20.1 of the Agreement in his Complaint 

and relies upon these two sections to assert each of his claims. See 

Compl. at ¶¶ 10-12, 22-26, 28-32, 34-35, 42-43. Each of his claims 

exists solely as a result of the Agreement, even if state law is used to 

enforce a particular theory of liability. The rights Plaintiff seeks to 

assert are “substantially dependent” on analyzing the Agreement. 

Remand Order at 7. The fact Plaintiff did not refer to the “Agreement” as a CBA did not change 

the Court’s analysis. Id. at 8 (“Plaintiff’s failure to directly describe the Agreement as a CBA 

appears to be a conscious attempt to artfully plead around the existence of the CBA. The Court 

may look beyond such artful pleading.” (citing cases)).
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fraudulently concealed his claims. Id. at 3-4.

B. Analysis

1. Applicable Statute of Limitations2

The statute of limitations applicable to LMRA claims is determined by whether the claims 

are “straightforward” or “hybrid.” A “straightforward” claim involves suing an employer for 

breaching a CBA. See DelCostello v. Int’l Broth. of Teamsters et al., 462 U.S. 151, 162 (1983) (a 

union who sues an employer for breach of a CBA presents a “straightforward breach of contract 

suit under § 301” of the LMRA (discussing Auto Workers v. Hoosier Corp., 383 U.S. 696 (1966)). 

A “hybrid” claim is comprised of two causes of action: one against the employer for breach of a 

CBA under the LMRA, and the other against the union for breach of its duty of fair representation

under the NLRA. See id. at 164-65 (“The suit against the employer rests on [the LMRA], since 

the employee is alleging a breach of the [CBA]. The suit against the union is one for breach of the 

union’s duty of fair representation, which is implied under the scheme of the [NLRA].”). It is not 

dispositive that Plaintiff chose to only name Local 853 as a Defendant and not his employer. Id. at 

165 (an employee may “sue one defendant and not the other; but the case he must prove is the 

same whether he sues one, the other, or both.”); see also Conley v. Int’l Broth. of Elec. Workers, 

Local 639, 810 F.2d 913, 915 (9th Cir. 1987) (“It is the federal or state nature of the issues to be 

decided, and not simply the identity of the parties, that controls the distinction between hybrid and 

straightforward cases.”). 

“Straightforward” Section 301 claims borrow the “most closely analogous statute of 

limitations under state law.” DelCostello, 462 U.S. at 159-162 (discussing application of state 

contract statute of limitation to straightforward claim of breach of CBA by employer: “We relied 

heavily on the obvious and close analogy between this variety of § 301 suit and an ordinary breach 

 

2

“[A] defendant may . . . raise a motion to dismiss based on the [statute of limitations] defense if 

the running of the limitations period is apparent on the face of the complaint. Jay v. Serv. Empls. 

Int’l Union-United Health Care Workers W., 203 F. Supp. 3d 1024, 1037 (N.D. Cal. 2016) (citing

Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“If the running of a statute is 

apparent on the face of the complaint, the defense may be raised by a motion to dismiss”)). Here, 

Defendant’s statute of limitations argument is based on the face of the Complaint. See Mot. at 5 

(referring to admission in Compl. ¶ 18).
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of contract case. We expressly reserved the question whether we would apply state law to § 301 

actions where the analogy was less direct or the relevant policy factors different[.]”). But “hybrid” 

claims alleging not only the breach of a CBA but also of the union’s breach of its duty of fair 

representation “amount[ ] to a direct challenge to the private settlement of disputes under [the 

CBA] . . . [and have] no close analogy in ordinary state law.” Id. at 164-65 (internal quotation 

marks and citations omitted). Instead of looking to state law, the Supreme Court held that the 

statute most analogous to hybrid claims is Section 10(b) of the NLRA, “a federal statute of 

limitations actually designed to accommodate a balance of interests very similar to that at stake 

here.” Id. at 169; id. at 170 (“The NLRB has consistently held that all breaches of a union’s duty 

of fair representation are in fact unfair labor practices. . . . Even if not all breaches of the duty are 

unfair labor practices, however, the family resemblance is undeniable, and indeed, there is a 

substantial overlap.” (emphasis in original)); see also Conley, 810 F.3d at 915 (looking at 

“essence” of complaint: “[t]he case at hand poses the question of a union’s duty to its members, 

and because of the close relation this bears to the federal policy of fair representation generally, it 

follows that the federal limitations statute [in Section 10(b)] applies . . . In this case, the analogy to 

an unfair labor practice is compelling.”). Section 10(b) establishes a six-month statute of 

limitations. See 29 U.S.C. § 160(b) (“[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 such charge is made[.]”); see also

Sullivan v. Aramark Unif. & Career Apparel, Inc., 2011 WL 5827220, at *2-3 & n.1 (N.D. Cal. 

Nov. 18, 2011) (“As the Supreme Court made clear, a ‘hybrid’ claim under § 301 of the LMRA is 

subject to a six-month statute of limitations.” (citing DelCostello, 462 U.S. at 169)). 

The Court finds the federal nature of the issues presented in this matter is properly 

characterized as a “hybrid” claim. A “hybrid” claim typically arises when a plaintiff alleges the 

union was unfair in its representation of the employee’s interest. See Conley, 810 F.2d at 915 

(where “the essence of [plaintiff’s] complaint [was] that the union failed to act fairly on his 

behalf[,]” the claim was properly characterized as “hybrid”); Mediran v. The Int’l Ass’n of 

Machinists & Aerospace Workers, 2011 WL 2746601, at *3 (N.D. Cal. July 14, 2011) (“Hybrid § 
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301/fair representation claims typically arise where a union’s handling of a grievance is alleged to 

be deficient.” (citing Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986)). The essence of 

the Complaint is that Local 853 failed to act fairly on Plaintiff’s behalf by, inter alia, (1) failing to 

present his dispute to an arbitrator as required by the CBA, and (2) misrepresenting to Plaintiff 

that it had exhausted the dispute-resolution process and that the Board’s decision was final. See

Compl.

3

This can be fairly characterized as a claim for breach of the duty of fair representation4,

as well as a claim for breach of the CBA—i.e., a classic “hybrid” claim under the authorities cited 

above. The six-month statute of limitation therefore applies to Plaintiff’s claims.

2. Timeliness

“Courts have generally found that the claim accrues and the six-month statute of 

limitations starts to run when an employee ‘discovers, or in the exercise of reasonable diligence 

should have discovered, the acts constituting the alleged [violation].’” Eason v. Waste Mgmt. of 

Alameda Cty., 2007 WL 2255231, at *5 (N.D. Cal. Aug. 3, 2007) (quoting Galindo, 793 F.2d at 

1509-10 (six-month statute of limitation for a “hybrid” claim accrued on or about the date plaintiff 

received a letter stating the union would no longer pursue the employee’s grievance)). Where the 

dispute arises in the grievance procedure context, the claim typically accrues at the conclusion of 

the grievance proceedings; where the claim arises outside of that context, the claim accrues when 

the employee reasonably should have learned of the violation. See id. Moreover, “[u]nion 

members have a duty to become aware of the nature and availability of union remedies. . . . [and 

t]he union’s failure to inform a union member of the existence of a union appeals process does not 

excuse the member’s ignorance.” Evangelista v. Inlandboatmen’s Union of the Pac., 777 F.2d 

1390, 1397 (9th Cir. 1985) (citing cases); Eason, 2007 WL 2255231, at *7-8 (employees who are 

subject to CBAs are “charged with constructive knowledge of its terms”; that union never told 

employee of the CBA’s terms, or that employee never read the CBA “is insufficient to 

 

3 A “hybrid” claim can be brought against a defendant “notwithstanding the outcome or finality of 

the grievance or arbitration proceeding.” Sullivan, 2011 WL 5827220, at *2. 

4

See also Remand Order at 4 (“Plaintiff’s misrepresentation claims appear to be subsumed by 

Local 853’s duty of fair representation. . . .”). 
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demonstrate that a reasonably diligent plaintiff would not have discovered [defendant’s] failure to 

comply with the terms of the CBA.” (citing cases)).

Based on the allegations of the Complaint, the six-month statute of limitations accrued on 

or about October 16, 2013, when Defendant notified Plaintiff “the grievance was final and 

binding. . . . The union has exhausted its defense of your termination under the [CBA].” Compl. ¶ 

18; see Galindo, 793 F.2d at 1510. Moreover, Plaintiff had constructive knowledge of the terms 

of the, and as such, should have been aware a third step in the dispute resolution process remained

after the Board of Adjustment hearing. Plaintiff nonetheless did not file his Complaint until 

December 27, 2016, well beyond the six-month statute of limitations. 

3. Equitable Tolling

Plaintiff argues his Complaint is timely even under the six-month statute of limitations, 

because Defendant’s fraudulent concealment tolled the statute of limitations. Opp’n at 4. 

Fraudulent concealment “halts the statute of limitations when there is active conduct by a 

defendant, above and beyond the wrongdoing upon which the plaintiff’s claim is filed, to prevent 

the plaintiff from suing in time.” Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006) (citing 

Johnson v. Henderson, 314 F.3d 409, 415 (9th Cir. 2002)). Tolling the statute of limitations on 

the basis of fraudulent concealment requires Plaintiff to establish: “(1) fraudulent concealment by 

the party raising the statute of limitations defense; [and] (2) the other party’s failure to discover the 

facts that are the basis for a cause of action despite (3) the exercise of due diligence.” Eason, 2007 

WL 2255231, at *6 (citing NLRB v. Don Burgess Const. Co., 596 F.2d 378, 383 (9th Cir. 1979)). 

A plaintiff “must demonstrate that he relied on the defendant’s misconduct in failing to file in a 

timely manner and must plead with particularity the facts which give rise to the claim of 

fraudulent concealment.” Guerrero, 442 F.3d at 706-07 (internal quotation marks and citation 

omitted). 

The only allegations in the Complaint that relate to fraudulent concealment are that: 

“Plaintiff did not discover that this statement [regarding exhaustion of the defense] was false until 

within three (3) years of the filing of this lawsuit” (Compl. ¶ 18); “Defendants’ [sic] representation 

was false. . . . Defendants [sic] knew that the representation was false when it was made” (id. ¶¶ 
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35-36, see also id. ¶¶ 43-44); and Plaintiff reasonably relied on the representation (id. ¶¶ 38, 46). 

The conclusory allegations are insufficient to plead fraudulent concealment. See Guerrero, 442 

F.3d at 706-7 (plaintiff must plead facts giving rise to fraudulent concealment with particularity); 

see also Smith v. Norcal Waste Sys. of San Jose, Inc., 2006 WL 581041, at *4 (N.D. Cal. March 7, 

2006) (“conclusory statements of fraudulent concealment and lack of actual or constructive 

knowledge of the facts giving rise to their cause of action” come “woefully short” of standard for 

pleading equitable tolling). Plaintiff fails to allege facts from which a reasonable inference could 

be plausibly drawn that Defendant’s conduct was “above and beyond” the alleged wrongdoing, or 

that Plaintiff exercised due diligence to discover the facts underlying this action. 

CONCLUSION

Based on the face of the Complaint, Plaintiff’s claims are preempted under Section 301 of 

the LMRA and are time-barred under the six-month statute of limitations applicable to hybrid 

Section 301 claims. Because Plaintiff has not stated a claim upon which relief may be granted. 

Defendant’s Motion is therefore GRANTED. 

It is unclear whether Plaintiff can allege additional facts to show the statute of limitations 

was tolled due to Defendant’s fraudulent concealment. The Court gives Plaintiff leave to amend

to allege such facts. If Plaintiff amends, he also must properly amend the complaint to state a 

claim under federal law rather than reasserting the state law claims this Court has found are 

preempted.5 Any amended complaint must be filed by May 18, 2017. 

IT IS SO ORDERED.

Dated: April 26, 2017

______________________________________

MARIA-ELENA JAMES

United States Magistrate Judge

 

5

 See Carr v. Allied Waste Sys. of Alameda Cty., 2010 WL 4916433, at *18 (N.D. Cal. Nov. 23, 

2010) (“[T]he fact that the state law claims are preempted does not mean that plaintiff has no 

claim—it simply means that he must amend the complaint to state a claim under federal law.”) 

The Court will dismiss Plaintiff’s state-law claims if he re-pleads them. See Sullivan, 2011 WL 

5827220 at *3 (dismissing breach of contract and breach of duty of fair representation claims as 

preempted, after plaintiff had failed to follow court’s order to re-characterize these as “a ‘hybrid’ 

claim under § 301 of the LMRA.”)