Occidental Chemical Corporation v. International Chemical Workers Union Local 820 International Chemical Workers Union

KRUPANSKY, Circuit Judge,

dissenting.

Because the majority’s disposition conflicts with the weight of authority from other circuits and is inconsistent with earlier Sixth Circuit precedent, I am constrained to respectfully dissent.

The majority’s disposition is on its face internally inconsistent. At the outset, the majority rejects application of the Michigan Statute of Limitations for vacating an arbitration case. The Michigan statute cannot be applied to § 301 cases such as the one at bar, the majority concluded, because the Michigan statute, MCLA § 600.5001(3), contains a clause which reads as follows:

(3) Collective labor contract expected. The provisions of this chapter shall not apply to collective contracts between employers and employees or associations of employees in respect to terms or conditions of employment.

The majority’s refusal to accept the Michigan statute was correct and, indeed, compelled by this court’s earlier decision in Badon v. General Motors Corp., 679 F.2d 93, 98 (6th Cir.1982) (rejecting application of Michigan statute because of its language specifically excluding labor contracts from the statute).

However, after rejecting the Michigan statute because of its exclusionary language, the majority opinion paradoxically adopts the United States Arbitration Act (USAA) standard as the appropriate one. The majority reaches this result despite the fact that the USAA contains language almost identical to that of the Michigan statute:

[Njothing herein contained shall apply to contracts of employment of seamen, rail *1318 road employees, or any other class of workers engaged in foreign or interstate commerce.

9 U.S.C. § 1 .

The majority attempts to justify this anomalous result by contending that “Badon was not a suit to vacate an arbitration award and we are not required to follow its broad statement”. However, the distinction (between a suit to vacate and a suit to compel arbitration) was not recognized by the Badon court, which expressly declined to apply a limitations period because of the exclusion contained in the applicable statute. Indeed, the majority appears to adopt the Badon court’s reasoning when it states “we agree that in view of the Michigan Act’s disclaimer it does not provide the most appropriate limitations period.”

Because the USAA disclaimer is not meaningfully distinguishable from the Michigan Act’s disclaimer, the majority’s own reasoning (as well as the Badon holding) compels rejection of the USAA. Indeed, two earlier panels of this circuit have refused to apply the USAA limitations period to labor eases. See Champion Int’l Corp. v. Paperworkers, 779 F.2d 328 (6th Cir.1985) (rejecting USAA without analysis); Vaden v. United States Postal Service, 787 F.2d 594 (6th Cir.1986) (unpublished per curiam).

This position is consistent with the holdings of the First, Third, Fourth, Fifth, Ninth and Tenth Circuits, which have refused to apply the USAA in the labor law context. The legislative history of the USAA makes it clear that the USAA was intended to govern only commercial arbitration and that labor matters were expressly excluded. See Service Employees International Union, Local No. 36 v. Office Center Services, Inc., 670 F.2d 404 , 406-07 n. 6 (3d Cir.1982). Accordingly, almost without exception, the other circuits have adhered to the express language of the USAA and have refrained from “simply invent[ing], by judicial decree, a statute of limitations where Congress has failed to do so.” Edwards v. SeaLand Service, Inc., 678 F.2d 1276, 1291 (5th Cir.1982), vacated on other grounds, 462 U.S. 1127 , 103 S.Ct. 3104 , 77 L.Ed.2d 1360 (1983). The weight of authority was best summarized in San Diego County Dist. of Carpenters v. Corp., 685 F.2d 1137 , 1141-42 (9th Cir.1982). The court analyzed the USAA’s exclusion in the context of an action to vacate an arbitration award and decided as follows:

We question whether Congress intended the courts to look at the USAA for guidance in interpreting Section 301. Section 1 of the USAA specifically excludes from its coverage “contracts of employment ... of any class of workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1 . This language suggests that Congress did not mean the USAA to be used to review arbitration awards involving collective bargaining agreements.... No legislative sanction can thus be found in the Act for uniformly borrowing the USAA’s limitation period for reviewing arbitration decisions under section 301.

This view was recently reaffirmed in Sheet Metal Workers International v. Air Systems Engineering, Inc., 831 F.2d 1509, 1512-13 (9th Cir.1987). Moreover, at least seven other circuit opinions which have discussed the issue have found the USAA to be inapplicable to labor law cases. 1

*1319 Crucially, five of the aforementioned courts have specifically rejected the USAA in actions to vacate arbitration awards. See G.L. Cory, Inc., 685 F.2d at 1141; Local 1020, 658 F.2d at 1290-92; Edwards, 678 F.2d at 1290-91 ; Sine, 644 F.2d at 1002; Kerr-McGee, 618 F.2d at 659. See also Int’l Association of Heat and Frost Insulators, Local No. 12 v. Insulation Quality Enterprises, Ltd., 675 F.Supp. 1398 (E.D.N.Y.1988). Accordingly, the majority’s argument that the USAA must be applied in actions to vacate (in contrast to actions to compel) arbitration has been rejected by all but one of the circuit courts which have considered the issue. 2

As the majority correctly observed, only three limitations periods could arguably be applied in the instant case. I agree with the majority that the Michigan law period cannot apply, but I would not apply the USAA. Accordingly, I would apply the six-month limitations period in § 10(b) of the NLRA. As the majority concedes, “Section 10(b) is part of a comprehensive labor law and expresses congressional policy in the labor field.” Maj. Op. at 1315. Moreover, “[b]y adopting § 10(b), we would be choosing a reasonably short period and would provide uniformity between ‘straight’ § 301 actions and hybrid § 301/unfair representation actions.” Id.

Even though the shorter USAA statute of limitations might be desirable from a policy perspective, the § 10(b) limitations period does comport with federal labor policy, as the majority acknowledges. Since the majority has presented no convincing reason to “change the limitations of the Federal Arbitration Act by judicial fiat,” Edwards, 678 F.2d at 1291 , I am constrained to respectfully dissent. 3

. See Local 1020 of the United Bhd. of Carpenters v. FMC Corp., 658 F.2d 1285 , 1290-92 (9th Cir.1981) (rejecting USAA in action to vacate arbitration award); Edwards v. Sea-Land Service, Inc., 678 F.2d 1276, 1290-91 (5th Cir.1982) (in action to vacate arbitration award, the court refused to "change the limitations of the Federal Arbitration Act by judicial fiat.”), vacated on other grounds, 462 U.S. 1127 , 103 S.Ct. 3104 , 77 L.Ed.2d 1360 (1983); Sine v. Local No. 992, Int’l Brotherhood of Teamsters, 644 F.2d 997, 1002 (4th Cir.) (in action to vacate arbitration award, USAA is inapplicable), cert. denied, 454 U.S. 965 , 102 S.Ct. 507 , 70 L.Ed.2d 381 (1981); Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983) (other circuits have "unanimously declined to borrow the limitations period set forth in the federal arbitration act"); Electrical, Radio & Machine Workers v. Ingram Mfg. Co., 715 F.2d 886 (5th Cir.1983), ce rt. denied, 466 U.S. 928 , 104 S.Ct. 1711 , 80 L.Ed.2d 184 (1984); Service Employees Int’l Union Local No. 36 v. Office Center Services, Inc., 670 F.2d 404 , 406-07 n. 6 (3d Cir.1982); International Union of Operating Engineers, AFL-CIO, Local No. 670 v. KerrMcGee Refining Corp., 618 F.2d 657, 659 (10th Cir.1980) (counterclaim to vacate arbitration award is not governed by USAA).

. American Postal Workers v. United States Postal Service, 823 F.2d 466, 476 (11th Cir.1987) is the only circuit decision which supports the majority position. However, that court recognized its position was a minority view. 823 F.2d at 475 . Nor does the opinion in Paperworkers Union v. Misco, Inc., — U.S. -, 108 S.Ct. 364 , 372 n. 9, 98 L.Ed.2d 286 (1987) support the majority’s opinion herein. The court in Misco stated expressly that the USAA does not apply to labor contracts. Id. However, the court did acknowledge that “the federal courts have often looked to the act for guidance in labor arbitration cases.” Id. The court did not endorse this practice, nor did it criticize the numerous circuit decisions which have rejected application of the USAA to labor cases.

. At this juncture, I express no opinion on the merits of the instant action to vacate. “[0]rder-ly procedure dictates that the district court decide this question [merits of an action to vacate] in the first instance,” American Postal Workers, 823 F.2d at 478 n. 20. Since the district court dismissed the instant action solely on the statute of limitations issue, remand is necessary so that the lower court may decide the merits.