United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2008 Decided March 28, 2008
No. 06-5244
JAMES W. CEPHAS,
APPELLANT
v.
MVM, INC. AND
ROBERT L. CHANEY, DEPARTMENT OF JUSTICE, UNITED
STATES ATTORNEY’S OFFICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00033)
Richard J. Link, Jr. argued the cause and filed the brief for
appellant.
Katherine A. Goetzl argued the cause for appellee MVM,
Inc. With her on the brief was Jason M. Branciforte.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
2
GINSBURG, Circuit Judge: James Cephas sued his em-
ployer, MVM, Inc., for damages, claiming the company violated
its Collective Bargaining Agreement (CBA) with Cephas’s
union when it transferred him to another position. The district
court first held Cephas’s claim arose under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, because § 301
completely preempts a claim for breach of a CBA cast in terms
of state contract law. The court then held the applicable statute
of limitations was to be found in § 10(b) of the National Labor
Relations Act, 29 U.S.C. § 160(b) (six months), and dismissed
the action as untimely. We hold the applicable limitation period
was to be found in the District of Columbia Code, § 12-301(7)
(three years), pursuant to which this case was timely filed.
I. Background
At all relevant times MVM provided security guards for
various premises in Washington, D.C. under a contract with the
U.S. Marshals Service. Cephas was employed by MVM as a
Court Security Officer at the U.S. Attorney’s Office in March
2003 when Robert Chaney, the government official in charge of
security there, alleged Cephas failed to respond to an emergency
while on duty and invoked the Government’s contractual right
to have Cephas removed. As a result, MVM transferred Cephas
to its security force at the National Courts Building.
Cephas’s union filed a grievance with MVM, claiming the
transfer was inconsistent with its CBA. MVM denied the
grievance on the ground that the transfer of Cephas was “not
reviewable” under the CBA because it “was done at the written
request of the Government.”
In December 2004, Cephas sued Chaney and MVM in the
Superior Court of the District of Columbia, alleging Chaney had
defamed him and MVM had transferred him in violation of the
3
CBA and unspecified “rights of Cephas.” MVM removed the
case to the United States district court, which dismissed the suit
against MVM in September 2005. The court reasoned that
§ 301 of the LMRA completely preempted Cephas’s claim
under D.C. law and that, recast as a federal claim arising under
§ 301, it was barred by the six-month statute of limitations in
§ 10(b) of the NLRA. 403 F. Supp. 2d 17; see Caterpillar Inc.
v. Williams, 482 U.S. 386, 393 (1987) (“Once an area of state
law has been completely pre-empted, any claim purportedly
based on that pre-empted state law is considered, from its
inception, a federal claim, and therefore arises under federal
law”). In July 2006, the district court dismissed Cephas’s action
against Chaney as barred by the doctrine of sovereign immunity
or, in the alternative, as untimely.
Cephas appealed both rulings. Another panel of this court
affirmed the dismissal of the action against Chaney; we address
now only the timeliness of Cephas’s claims against MVM.
II. Analysis
Cephas argues his contract claim arises under D.C. law, i.e.,
is not completely preempted, and that, even if the claim is
completely preempted and therefore arises under § 301, D.C.
law provides the applicable statute of limitations. MVM takes
the position that § 301 completely preempts Cephas’s state law
claim and that the applicable statute of limitations is to be found
in § 10(b) of the NLRA. Reviewing these issues of law de novo,
we hold that Cephas’s claim arises under § 301 but nonetheless
was timely filed because, for the type of claim advanced in this
case, § 301 borrows the District of Columbia’s limitation period
for a breach of contract action, which is three years.
4
A. Complete Preemption
Section 301(a) of the LMRA provides:
Suits for violation of contracts between an employer and a
labor organization representing employees in an industry
affecting commerce ... may be brought in any district court
... without respect to the amount in controversy [and]
without regard to the citizenship of the parties.
The Supreme Court has held § 301(a) is a source of substantive
federal common law, Textile Workers Union v. Lincoln Mills of
Ala., 353 U.S. 448, 456-57 (1957), and provides a federal right
of action, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557
(1968). Moreover, an employee may sue his employer under
§ 301 for breach of a CBA even if the employer’s alleged
conduct is also an unfair labor practice prohibited by the NLRA.
See Smith v. Evening News Ass’n, 371 U.S. 195, 197, 201
(1962).
Section 301 completely preempts any action predicated
upon state law if that action “depends upon the meaning of a
collective-bargaining agreement.” Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). As the Supreme
Court has explained,
the pre-emptive force of § 301 is so powerful as to displace
entirely any state cause of action “for violation of contracts
between an employer and a labor organization.” Any such
suit is purely a creature of federal law, notwithstanding the
fact that state law would provide a cause of action in the
absence of § 301.
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S.
1, 23 (1983) (citing Avco Corp., 390 U.S. 557).
5
Cephas’s complaint charges MVM breached the CBA and
violated unspecified “rights” of his. Neither his complaint nor
his brief, however, identifies any source of right -- such as an
individual employment agreement -- other than the CBA. We
conclude his action depends entirely upon the meaning of the
CBA and is, therefore, completely preempted by § 301. Lingle,
486 U.S. at 405-06; cf. Caterpillar Inc., 482 U.S. at 394-95
(Section 301 does not completely preempt action for breach of
individual employment contract).
B. Timeliness
Although Cephas’s only cause of action arises under a
federal statute, that is, § 301, federal law does not necessarily
displace the statute of limitations that would apply under D.C.
law. Section 301 does not specify a statute of limitations,* and
“the general rule [is] that statutes of limitation” for federal rights
of action that do not specify a limitation period “are to be
borrowed from state law.” Reed v. United Transp. Union, 488
U.S. 319, 324 (1989); see also Holmberg v. Armbrecht, 327 U.S.
392, 395 (1946) (“As to actions at law, the silence of Congress
has been interpreted to mean that it is federal policy to adopt the
local law of limitation”). We presumptively apply the limitation
period that would apply to the state law claim that is “most
closely analogous” to the federal claim in suit. North Star Steel
Co. v. Thomas, 515 U.S. 29, 34 (1995); see also Graham County
Soil & Water Conservation Dist. v. United States ex rel. Wilson,
545 U.S. 409, 414-15 (2005) (“we ... ‘borrow’ the most closely
analogous state limitations period” in all but “the rare case”).
The presumption favoring state law is overcome only “when
the state limitations period ... would frustrate or interfere with
*
Because § 301 was enacted before December 1, 1990, the
default federal limitation period in 28 U.S.C. § 1658 is inapplicable.
6
the implementation of national policies or be at odds with the
purpose or operation of federal substantive law.” North Star
Steel, 515 U.S. at 34-35 (citations and quotations omitted). In
that event, the courts must borrow a limitation period from an
analogous federal statute. Id.; see also RICHARD H. FALLON, JR.
ET AL., HART & WECHSLER’S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 761-62 (5th ed. 2003) (discussing cases in
which the Supreme Court has “fashion[ed] a federal rule of
decision” by borrowing from a federal statute).
Cephas argues federal law does not displace the state (here,
D.C.) statute of limitations for a breach of contract action,
wherefore his case was timely filed. MVM counters, on the
authority of DelCostello v. International Brotherhood of
Teamsters, 462 U.S. 151 (1983), that the six-month statute of
limitations in § 10(b) of the NLRA displaces the presumptively
applicable state limitation period whenever an employee sues his
employer for breach of a CBA.
(1) DelCostello and the Hybrid Claim
Before DelCostello, the Supreme Court had held in a § 301
suit for breach of a CBA that the applicable statute of limitations
was to be borrowed from analogous state law. Thus, in UAW v.
Hoosier Cardinal Corp., a § 301 action for damages brought by
a union alleging the employer had breached the CBA and
various unwritten contracts of employment with the employees,
the Court applied the state statute of limitations for breach of
contract. 383 U.S. 696 (1966). In DelCostello, however, the
Court addressed a different sort of claim and reached a different
result.
Although an employee may sue an employer under § 301
for breach of a CBA, the employee first must exhaust the
grievance and arbitration procedures in the CBA. Republic Steel
7
Corp. v. Maddox, 379 U.S. 650, 652-53 (1965). If, however,
“the union representing the employee in the
grievance/arbitration procedure acts in such a discriminatory,
dishonest, arbitrary, or perfunctory fashion as to breach its duty
of fair representation” (DFR), then the “employee may bring suit
against both the employer and the union.” DelCostello, 462
U.S. at 164. Such a “hybrid § 301/fair representation claim”
consists of “two [intertwined] causes of action,” one against the
employer for breach of the CBA and the other against the union
“for breach of the union’s [DFR], which is implied” from the
NLRA. Id. at 164-65 & n.14; see also Steele v. Louisville &
Nashville R.R. Co., 323 U.S. 192 (1944) (role as exclusive
representative of employees implies DFR). The employee may
bring his action against the employer, the union, or both, “but
the case he must prove is the same.” DelCostello, 462 U.S. at
165. Regardless whom he sues, that is, if the claim is a hybrid
then the employee must show (1) the union breached its DFR
and (2) the employer breached the CBA.
In DelCostello, rather than draw upon state law to supply
the limitation period for hybrid cases employees had brought
against their employers, the Supreme Court applied the limita-
tion period in § 10(b) of the NLRA. The Court emphasized the
substantial similarity between the DFR component of a hybrid
claim and an unfair labor practice claim. Id. at 170 (“The NLRB
has consistently held that all breaches of a union’s [DFR] are in
fact unfair labor practices. ... Even if not all breaches of the
duty are unfair labor practices, ... the family resemblance is
undeniable ....”); see also Jacoby v. NLRB, 325 F.3d 301, 305-08
(D.C. Cir. 2003) (discussing overlap between DFR and unfair
labor practice claims). The Court then explained more generally
that applying the state statute of limitations would frustrate
federal labor policy:
8
In § 10(b) of the NLRA, Congress established a
limitations period attuned to what it viewed as the proper
balance between the national interests in stable bargaining
relationships and finality of private settlements, and an
employee’s interest in setting aside what he views as an
unjust settlement under the collective-bargaining system.
That is precisely the balance at issue in this case. The
employee’s interest in setting aside the final and binding
determination of a grievance through the method estab-
lished by the collective-bargaining agreement unquestion-
ably implicates those consensual processes that federal
labor law is chiefly designed to promote -- the formation of
the agreement and the private settlement of disputes under
it. Accordingly, the need for uniformity among procedures
followed for similar claims as well as the clear congressio-
nal indication of the proper balance between the interests at
stake, counsels the adoption of § 10(b) of the NLRA as the
appropriate limitations period for lawsuits such as this.
462 U.S. at 171 (quoting United Parcel Serv., Inc. v. Mitchell,
451 U.S. 56, 70-71 (1981) (Stewart, J., concurring in the
judgment) (internal citations, alterations, and quotation marks
omitted)).
The Court in DelCostello distinguished Hoosier principally
on the ground that it “did not involve any agreement to submit
disputes to arbitration.” 462 U.S. at 162.* There was no need in
*
The Court also distinguished Hoosier on the ground “the suit
was brought by the union itself rather than by an individual
employee.” 462 U.S. at 162. The relevance of the plaintiff’s identity
to the choice between state and federal statutes of limitations is not
clear, however, especially when one considers that the union in
Hoosier was suing on behalf of the employees. 383 U.S. at 699-700.
Indeed, several courts of appeals have applied Hoosier’s rationale to
9
Hoosier for “national uniformity” because that case did “not
involve ‘those consensual processes that federal labor law is
chiefly designed to promote -- the formation of the collective
agreement and the private settlement of disputes under it.’” Id.
at 163 (quoting Hoosier, 383 U.S. at 702). Nor did the union’s
suit differ from “an ordinary breach-of-contract case.” Id.
(2) MVM’s Categorical Approach
MVM argues, on the authority of DelCostello, that § 10(b)
of the NLRA provides the limitation period for any suit brought
by an employee against his employer for breach of a CBA,
including non-hybrid claims and claims not subject to a griev-
ance procedure. The district court agreed, 403 F. Supp. 2d at
23-24, which was an error of law.
As the Supreme Court explained in DelCostello, § 10(b) of
the NLRA displaces the presumption that state law defines the
limitation period for a hybrid claim because such a claim
“amount[s] to a direct challenge to the private settlement of
disputes under the [CBA]” and, in view of the federal interest in
the system of collective bargaining, § 10(b) appropriately limits
the time an employee has to mount such a challenge. 462 U.S.
at 165 (alterations and internal quotation marks omitted); see
also id. at 171. That rationale simply does not apply to every
claim arising under § 301. On the contrary, Hoosier seemingly
requires that we apply the local statute of limitations for breach
of contract when, as here, an employee seeks damages for the
an action brought by an employee for breach of a CBA, implicitly
rejecting the view that the plaintiff’s identity matters. See, e.g., Jones
v. Gen. Elec. Co., 87 F.3d 209, 211-12 (7th Cir. 1996) (critical
question is whether employee’s claim is a hybrid); Cabarga Cruz v.
Fundacion Educativa Ana G. Mendez, 822 F.2d 188, 191 & n.8 (1st
Cir. 1987) (collecting cases).
10
breach of a CBA but is not advancing a claim that was, or could
have been, resolved through the grievance procedure of the
CBA. See, e.g., Jones, 87 F.3d at 211-12 (“‘[H]ybrid’ cases ...
invoke the ‘narrow exception’” that federal law supplies a
limitation period “and are to be distinguished from ‘straightfor-
ward’ § 301 cases. For cases of the latter type, borrowing an
applicable state statute of limitations for breach of contract
remains the rule.”); Cabarga Cruz, 822 F.2d at 191 (applying
state law where claim was subject to grievance procedure but
employer repudiated CBA); Garcia v. Eidal Int’l Corp., 808
F.2d 717, 721 (10th Cir. 1986) (same); see also Vaca v. Sipes,
386 U.S. 171, 185 (1967) (employee need not exhaust grievance
procedure when employer repudiates CBA).
In resisting this conclusion, MVM points to the following
statement in DelCostello: “[E]ven if this action were considered
as arising solely under § 301 ... the objections to use of state law
and the availability of a well-suited limitations period in § 10(b)
would call for application of the latter rule.” 462 U.S. at 158
n.12. In context, however, it is clear the Court was explaining
that the hybrid claim could be considered either an action
“arising solely under § 301” or an “amalgam[], based on both an
express statutory cause of action” under § 301 for the em-
ployer’s breach of the CBA, “and an implied one” for the
union’s breach of its DFR. See id. The Court instructed that,
regardless how one considers the case, federal law should apply
because of “the objections to use of state law and the availability
of a well-suited limitations period in § 10(b).” Id. Nothing in
the opinion remotely suggests § 10(b) supplies the limitation
period for every non-hybrid action an employee brings for the
breach of a CBA.
Citing cases from other circuits, MVM asserts nonetheless
that § 10(b) provides the limitation period whenever an em-
ployee alleges under § 301 that his employer violated a CBA.
11
First, MVM relies upon Foy v. Giant Food Inc., 298 F.3d 284
(2002), in which the Fourth Circuit, citing DelCostello, applied
the limitation period in § 10(b) to a non-hybrid action by an
employee claiming his employer breached the CBA by firing
him after an altercation with another employee. Id. at 291.
Oddly, neither the opinion nor the briefs indicate whether the
issue was subject to a grievance procedure. If it was not, then as
we have explained, nothing in DelCostello required the result
reached by the Fourth Circuit, and it is in some tension with
Hoosier.
Second, MVM invokes Woosley v. Avco Corp., 944 F.2d
313 (6th Cir. 1991), but that decision is not inconsistent with our
analysis. There the court, proceeding upon the assumption that
filing a grievance and seeking arbitration would have been
futile, applied the limitation period in § 10(b) to the non-hybrid
claims of employees suing their former employer for breach of
a CBA and seeking reinstatement and back pay. Id. at 316, 318-
20. The Sixth Circuit borrowed the limitation period in § 10(b)
because “the plaintiff[s’] claims ... under the [CBA] ... involve
the question of entitlement for employment.” Id. at 318. As the
same court later pointed out, Woosley involved “‘law of the
shop’ considerations important to federal labor law.” Cummings
v. John Morrell & Co., 36 F.3d 499, 505 (6th Cir. 1994)
(quoting DelCostello, 462 U.S. at 168-69); but see DelCostello,
462 U.S. at 168-69 (focusing upon grievance and arbitration
processes). Insofar as the decision turned upon the nature of the
plaintiffs’ claims, we do not read Woosley to imply that § 10(b)
supplies the statute of limitations whenever an employee sues
his employer under § 301, as MVM suggests it does. See also
Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1216 (6th Cir.
1987) (declining to apply § 10(b) to employees’ action against
12
employer “where ... the action does not implicate the breach of
the union’s [DFR]”).*
Finally, MVM invokes the unpublished orders in Sanders
v. Hughes Aircraft Co., 26 F.3d 132 (Table), 1994 WL 227971
(9th Cir. 1994), and Keim v. Nat’l Super Mkts., Inc., 986 F.2d
503 (Table), 1993 WL 40835 (8th Cir. 1993), but they are not
inconsistent with our decision today. Each case involved a
claim as to which the union filed but later abandoned a griev-
ance, see Sanders, 1994 WL 227971, at * 1 (“The statute of
limitations began running [when the plaintiff] knew or should
have known that the union had stopped pursuing his griev-
ance”); Keim, 1993 WL 40835, at *1 (statute of limitations
“began to run ... when the Union dropped [the employee’s]
grievance”); each clearly challenged the result of the grievance
procedure, and each likely presented or should have presented
a hybrid claim for breaches of both the CBA and the DFR. See
Brief of Appellee at 22-23, Sanders v. Hughes Aircraft Co., No.
93-56378 (9th Cir. Feb. 16, 1994), 1994 WL 16133890 (arguing
complaint should be dismissed per Rule 12(b)(6) because
plaintiff must allege breach of DFR in order to sue employer).
Moreover, other decisions in both circuits recognize that
Hoosier makes the state statute of limitations applicable to non-
hybrid claims filed by an employee against his employer for
breach of a CBA. See Borowiak v. Vickers Inc., 972 F.2d 353
(Table), 1992 WL 157517, at *2 (8th Cir. 1992) (applying
§ 10(b) to employee’s claim under § 301 because “the complaint
*
We recognize a suit for specific relief, such as reinstatement,
might implicate different considerations than does an action for
damages, but we need not address whether a different statute of
limitations should apply because of the effect such a suit may have
upon collective bargaining. But see Cabarga Cruz, 822 F.2d at 191-
92 (applying state statute of limitation to non-hybrid action for
reinstatement alleging breach of CBA).
13
plainly implicated the nature of the union’s representation ... and
[was not] ... a pure breach of contract claim against the em-
ployer”); Ta v. Gen. Dynamics-Convair, 937 F.2d 614 (Table),
1991 WL 126735, at *4 (9th Cir. 1991) (“When the plaintiff’s
claim is not a hybrid, but a straightforward Section 301 claim for
breach of a [CBA], it is governed by [Hoosier]” rather than by
DelCostello).
In sum, we reject MVM’s argument that DelCostello makes
the six-month limitation period in § 10(b) applicable to every
action an employee may bring against his employer under § 301,
and we do not understand any other circuit, except perhaps the
Fourth, to have adopted that position. In our view, the applica-
ble limitation period depends upon the nature of the employee’s
claim, to which issue we now turn.
(3) The Non-Categorical Approach
Having rejected MVM’s approach, we must determine
whether Cephas raises a hybrid claim and, if not, whether
federal law otherwise requires that we borrow the six-month
limitation in § 10(b) of the NLRA. If the answers are on both
counts no, then we must apply the statute of limitations for the
“most closely analogous” action under D.C. law. See North Star
Steel, 515 U.S. at 34.
In the district court MVM at first argued that Cephas’s
complaint, which advanced a straightforward claim for breach
of contract under D.C. law, should be dismissed on the ground
that he failed to plead essential elements of a hybrid claim. The
court, however, dismissed Cephas’s action as untimely based
upon the assumption that Cephas had not advanced a hybrid
claim. 403 F. Supp. 2d at 23-24; see also id. at 22 (“this Circuit
has yet to decide whether the six-month statute of limitations in
14
NLRA § 10(b) applies when there is only a claim of breach of
the [CBA]”).
On appeal, Cephas points out that the grievance procedures
in the CBA are expressly made inapplicable “to any situation
where the Company is acting under the directives of the US
Marshals Service,” as he alleges MVM was doing in transferring
him. On brief, MVM does not disagree and treats as a “fact that
the CBA does not require an employee to use the grievance
procedure in the CBA when challenging an action by MVM
which was directed by MVM’s client -- such as Mr. Cephas’s
transfer.” At oral argument, moreover, MVM specifically
affirmed that Cephas’s claims are excluded from the grievance
and arbitration provisions of the CBA. Because Cephas’s claim
could not have been processed through the grievance procedure
in the CBA, it follows his case does not depend upon his union
having breached its DFR; he alleges a straightforward breach of
the CBA by his employer, not a hybrid claim of employer
breach of contract and union breach of the DFR.
Nor does federal law otherwise counsel application of the
limitation period in § 10(b). MVM does not even attempt to
show that it does, and we are unable to see how applying the
three-year limitation period in D.C. CODE § 12-301(7) would
frustrate “the formation of [a] collective agreement [or] the
private settlement of disputes under it.’” DelCostello, 462 U.S.
at 163. Cephas does not challenge the resolution of a grievance
or arbitration “decision which has given ‘meaning and content’
to the terms of an agreement,” or “affected subsequent modifica-
tions of the agreement,” id. at 169, and neither the pendency nor
the resolution of his suit would in any way interfere with the
formation of a new CBA. Id. at 171. Cf. Legutko v. Local 816,
Int’l Bhd. of Teamsters, 853 F.2d 1046, 1050-52 (2d Cir. 1988)
(applying § 10(b) to suit alleging violation of union’s constitu-
15
tion, which suit either would interfere with formation of CBA or
was hybrid claim).
Nothing in George v. Local Union No. 639, International
Brotherhood of Teamsters, 100 F.3d 1008 (1996), or Communi-
cations Workers v. AT&T, 10 F.3d 887 (1993), upon which
MVM relies, is to the contrary. In the former case we held
§ 10(b) applicable to an employee’s action solely against his
union for breach of the DFR. 100 F.3d at 1014. That follows
apodictically from DelCostello; § 10(b) supplies the limitation
period for a hybrid claim precisely because a hybrid claim
includes a DFR component. In Communications Workers we
applied § 10(b) to a union’s action to compel the arbitration of
a grievance because, unlike a “pure[] breach of contract ac-
tion[]” under § 301, 10 F.3d at 891-92 (alterations in original
omitted), such a case implicates the federal policy favoring the
speedy resolution of disputes pursuant to procedures set out in
a CBA. Id. at 889-91. Aside from the Eleventh Circuit, which
applied the state statute of limitations in United Paperworks
International v. ITT Rayonier, Inc., 931 F.2d 832 (1991), every
court of appeals to have considered such a case has applied the
limitation period in § 10(b) of the NLRA. See Commc’n
Workers, 10 F.3d at 889 n.1 (collecting cases); Local No. 88,
United Food and Commercial Workers Union v. Middendorf
Meat Co., 991 F.2d 801 (Table), 1993 WL 96905, at *2 (8th Cir.
1993); see also Local 1422, Int’l Longshoremen’s Ass’n v. S.C.
Stevedores Ass’n, 170 F.3d 407, 410 n.2 (4th Cir. 1999) (leaving
issue open).
Finally, MVM seemed to suggest at oral argument that the
National Labor Relations Board would have jurisdiction to
entertain an unfair labor practice complaint upon the basis of the
facts underlying Cephas’s claims, but counsel was unable to say
what unfair labor practice would be made out or why that should
matter -- as are we. See O’Hare v. Gen. Marine Transp. Corp.,
16
740 F.2d 160, 168 (2d Cir. 1984) (“DelCostello ... turns on the
particular nature of the [DFR] action, and cannot reasonably be
expanded to all section 301 claims that involve facts which
might also have established an unfair labor practice charge”);
Garcia, 808 F.2d at 721 n.2 (same); but see Cummings, 36 F.3d
at 506 (overlap with unfair labor practice relevant but not
dispositive). In view of the incompleteness of MVM’s argu-
ment, not to mention its untimeliness, we need not address
whether a § 301 case based upon facts that also make out an
unfair labor practice would require application of the statute of
limitations in § 10(b) of the NLRA.
III. Conclusion
Cephas brought an action for breach of a CBA, making no
claim that could have been processed through the grievance
procedure in that contract. His state law claim is completely
preempted and recast as a claim arising under § 301, as to which
the local statute of limitations for a breach of contract action,
D.C. CODE § 12-301(7), is presumptively applicable. MVM
having failed to overcome that presumption, we hold Cephas
timely filed his action. Accordingly, we remand the case to the
district court for further proceedings.
So ordered.