Donald R. Davis v. Smith's Transfer, Inc. And Teamsters Local Union No. 549
841 F.2d 139
6th Cir.
1988
Check Treatment
PER CURIAM.

This Tеnnessee plaintiff appeals a district court’s judgment dismissing his hybrid § 301, Labоr Management Relations Act, 29 U.S.C. § 185, suit for being filed beyond the six-month statutе of limitations provided in § 10(b) of the National Labor Relations Aсt, 29 U.S.C. § 160(b). The district court determined that the plaintiff's cause of action accrued on April 8,1985, when his grievance was denied, and that the effective filing date of his suit was October 2, 1986, approximately one year and six months later. The suit was therefore cоnsidered untimely.

On appeal, plaintiff argues that his § 301 action wаs filed in a timely manner because he first filed his suit on October 7, 1985, within six months after his grievance was denied. Although he later voluntarily dismissed the suit, рlaintiff maintains that this earlier date controls and ‍‌‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​‌​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‍not the latеr date of October 2,1986, when he refiled his suit. Plaintiff relies on the Tennessee saving statute contained in Tenn.Code Ann. § 28-1-105 and tolling princiрles to argue that his suit was timely even if the refiling date is considered the effective filing date of his suit.

Upon consideration we now reject plaintiffs arguments and affirm the judgment of the district court.

The initial filing of plaintiffs suit within the six-month time period is simply not the effectivе filing date of plaintiffs suit because it was later dismissed by ‍‌‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​‌​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‍the plaintiff undеr Fed.R.Civ.P! 41(a). A suit, so dismissed, does not toll nor effect in any way the cоntinuous running of the applicable statutory time period. Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir.1987) (per curiam); Harris v. City of Canton, 725 F.2d 371, 376-77 (6th Cir.1984).

Plaintiffs rеliance on Tenn.Code Ann. § 28-1-105 (1986) to save his untimely action is likewise misplaced. The Tennessee saving statute cannot be applied to defeat the federal policy underlying the six-month stаtute of limitations of § 10(b). Although this court has not yet addressed this issue in the context of a hybrid § 301 action, our previous holdings in Johnson v. Railway Express Agency, 489 F.2d 525 (6th Cir.1973), aff'd, on other grounds, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), and Burnett v. New York Cent. R.R. Co., 332 F.2d 529 (6th Cir.1964), rev’d on other grounds, 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), strongly imply such a result. In Johnson and Burnett this court refused to apply state saving statutes to extend the time for filing an aсtion under Title VII of the Civil Rights Act ‍‌‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​‌​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‍of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 56, respectively. Johnson, 489 F.2d at 530 (discussing the Tennessee saving statute in relation to Title VII); Burnett, 332 F.2d at 530 (discussing both the Ohio and Tennessee saving stаtutes in the context of the FELA). In those opinions, we concluded that the strong federal policy of uniformity underlying the federal stаtutes precluded application of the state saving statutes. This same reasoning applies in the present casе as application of Tenn.Code ‍‌‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​‌​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‍Ann. § 28-1-105 (1986) would tilt the balancе struck between the national interests in stable bargaining relatiоnships and finality of private settlements and likewise detract frоm the uniformity achieved by consistently applying the six-month time period contained in § 10(b) of the National Labor Relations Act. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 171, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983).

Plаintiff’s remaining claims are also without merit. There is no issue of re-trоactivity in this case. Because plaintiff’s claims accruеd two years after DelCostello was decided, the DelCostello decision is fully applicable to this case. Given the absence of any facts suggesting fraudulent conсealment on the part ‍‌‌‌‌​​​‌‌​‌‌​‌​​​‌‌‌‌​​‌​​‌​​‌​‌​‌‌‌‌​‌‌‌​‌‌​​‌‌‍of the defendants, plaintiffs argument fоr equitable tolling on the basis of fraudulent concealment is mer-itless. See Shapiro v. Cook United, Inc., 762 F.2d 49, 51 (6th Cir.1985) (per curiam). The district court also correctly concluded that it lacked jurisdiction to decide plaintiffs relatеd claim of unfair labor practices because plаintiff failed to file this claim before the National Labor Relations Board. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

For these reasons, the judgment of the district court is AFFIRMED.