[NOT FOR PUBLICATION]
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No. 91-1985
CARLOS MERCADO,
Plaintiff, Appellant,
v.
AVIATION ASSOCIATES, INC.
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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Cyr, Circuit Judge.
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Angel L. Morales Rodriguez, on brief for appellant.
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A.J. Harper II, Teri L. Danish, Fulbright & Jaworski and
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Lawrence E. Duffy on brief for appellee.
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August 26, 1992
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Per Curiam. The appellant, Carlos Mercado, was employed as
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a pilot by appellee Aviation Associates, Inc. Mercado took part
in efforts to organize the pilots employed by Aviation Associates
into a bargaining unit represented by the Air Line Pilots
Association (ALPA). Aviation Associates fired Mercado on
February 20, 1989, ostensibly because he had violated company
work rules. Mercado contends that he was sacked in retaliation
for his union organizing activities.
According to the statement of "uncontested material facts"
that both parties presented to the district court, Mercado then
"sought ALPA's assistance, because he believed that his dismissal
was caused by his support of ALPA." The assistance ALPA rendered
was informal, for at the time neither ALPA nor any other union
had been recognized as the bargaining representative of the
pilots employed by Aviation Associates, and no collective
bargaining agreement was in place. ALPA apparently presented a
"petition" to the president of Aviation Associates, and some form
of negotiations ensued. In January 1990 ALPA informed Mercado
that it was unable to settle his differences with Aviation
Associates.
In May 1990 -- five months after negotiations broke down but
fifteen months after Aviation Associates fired him -- Mercado
filed this suit in federal court. Initially, he named both
Aviation Associates and ALPA as defendants. Mercado claimed
that, by discharging him in retaliation for his union activities,
Aviation Associates had violated both the Railway Labor Act, 45
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U.S.C. 151 et seq., (which governs relations between airlines
and their employees, see 45 U.S.C. 181), and the Puerto Rico
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Wrongful Discharge Statute, 29 L.P.R.A. 185a. As to the union,
Mercado claimed that its efforts on his behalf were inadequate,
and that the union had thereby violated its duty "to fairly
represent" him, "which duty arises under the mandate of the
Railway Labor Act."
Mercado soon voluntarily dismissed his claim against ALPA.
The claims against Aviation Associates proceeded to a motion for
summary judgment. The district court granted the motion on the
ground that Mercado had failed to file suit within the six-month
period required by the Railway Labor Act. It then dismissed the
pendent state law claim. This appeal followed. We affirm.
On appeal, as in the district court, Mercado concedes that
"the statute of limitations concerning the instant matter is
indeed six months." See Benoni v. Boston and Maine Corp., 828
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F.2d 52, 56 (1st Cir. 1987) ("Although the RLA has no statute of
limitations of its own, the courts . . . have 'borrowed' the six-
month limitations period of section 10(b) [of the National Labor
Relations Act, 29 U.S.C. 160(b)] . . . and applied it to
actions claiming unfair labor practices under the RLA").1 His
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1Even if Benoni, and Linder v. Berge, 739 F.2d 686 (1st Cir.
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1984), left open the question whether it would be better in
actions arising under the Railway Labor Act to borrow the six-
month limitations period from Section 10(b) of the National Labor
Relations Act, or "the two year period provided in the Railway
Labor Act for suits challenging the decisions of the National
Railroad Adjustment Board," id. at 689, we need not answer the
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question here, where Mercado has conceded the applicability of
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only contention is that the limitations period was tolled while
ALPA negotiated on his behalf with Aviation Associates.
The general rule is that negotiations do not toll the
running of a limitations period. A plaintiff can invoke the
doctrine of equitable estoppel where the defendant has "in some
way lulled [him] into believing that it was not necessary to
commence litigation," Cerbone v. International Ladies' Garment
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Workers Union, 768 F.2d 45, 49-50 (2d Cir. 1985), and "[o]ne
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factor that frequently appears in the estoppel cases is a
settlement negotiation." Id. However, "[n]egotiations alone
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will not bring into play the doctrine of equitable estoppel."
Gieringer v. Silverman, 539 F.Supp. 498, 503 (E.D.Wis. 1982).
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"To constitute estoppel there must be deception relied upon by
the other to his detriment." McWaters & Bartlett v. United
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States for Use and Benefit of Wilson, 272 F.2d 291, 296 (10th
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the six-month limitations period. A court of appeals should not
address an issue never raised by the parties unless it is
convinced, "at a minimum, that not raising the issue would result
in a gross miscarriage of justice and that raising the issue
would virtually ensure the success of the party on whose behalf
the issue is being raised." Whyte v. Connecticut Mutual Life
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Ins. Co., 818 F.2d 1005, 1011 n.20 (1st Cir. 1987). Since other
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courts have unambiguously applied the six-month period of Section
10(b) to claims arising under Section 152 of the Railway Labor
Act, Robinson v. Pan American World Airways, 777 F.2d 84, 85-89
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(2d Cir. 1985); Brotherhood of Locomotive Engineers v. Atchison,
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Topeka & Santa Fe R. Co., 768 F.2d 914, 919 (7th Cir. 1985);
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Atkins v. Zantop International Airlines, 18 Av.Cas. (CCH)
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18,290 (E.D.Mich. 1984), and since Section 10(b) certainly is not
an inappropriate candidate for borrowing in this case, see
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Communications Workers of America v. Western Electric Co., 860
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F.2d 1137, 1139 (1st Cir. 1988) (in determining which limitations
period to borrow, "[t]he key has become appropriateness"), we
have no occasion to inquire further.
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Cir. 1959). Thus, a claim of "estoppel by negotiation" requires
proof that in offering to negotiate, or in actually negotiating,
the defendants made representations which they knew or should
have known would induce the plaintiff to delay bringing suit, and
that the plaintiff in fact delayed filing suit in reliance on
those representations. See Whitcomb v. Pension Development Co.,
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808 F.2d 167, 172 (1st Cir. 1986).
None of these elements is present here. The record contains
neither allegations nor proof that Aviation Associates used the
lure of settlement to forestall a lawsuit until the period of
limitations had passed. To the contrary, it appears that Mercado
and his ALPA representatives, rather than the employer, initiated
the negotiations. See Pfister v. Allied Corp., 539 F.Supp. 224,
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227 (S.D.N.Y. 1982) (declining to find equitable estoppel where
"plaintiff himself requested that the defendant discuss
settlement with him"). The district court therefore correctly
applied the limitations bar to the Railway Labor Act claim, and
properly dismissed the pendent state law claim along with it.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("if the
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federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should
be dismissed as well").
Affirmed.
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