Petition — Ellis Trucking Co. v. Smart

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IN THE

Supreme Court of the Anited States

October Term, 1978

No. eeeeeeeeee my a _o re 4 & >}

ELLIS TRUCKING COMPANY, INC.,

an Indiana Corporation, and

NAVAJO-ELLIS TRUCKING CO., INC.,

a New Mexico Corporation,

Petitioners,

vs.

EARL L. SMART

and

LOCAL UNION NO. 299,

Affiliated with International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

RILEY AND ROUMELL

GEORGE T. ROUMELL, JR.

JOHN F. BRADY

CRAIG W. LANGE

720 Ford Building

Detroit, Michigan 48226

(313) 962-8255

Counsel for Petitioners

Ellis Trucking Company, Inc.

and Navajo-Ellis Trucking Co., Inc.

THE INLAND PRESS, DETROIT, MICHIGAN

INDEX

STATEMENT OF QUESTIONS PRESENTED .......

CONSTITUTIONAL PROVISIONS AND STA-

ee I caresses nschnbascwsineionns

STATEMENT OF THE CASE ......... inc teciaaiccadages sek '

A. PROCEDURAL HISTORY 000000000...

B. STATEMENT OF FACTS RELEVANT FOR

REASONS FOR GRANTING THE WRIT...

ARGUMENT

I THE COURT OF APPEALS ERRED IN

HOLDING THAT THE RESPONDEN'T-EM-

PLOYEEK’S ATTEMPT TO SET ASIDE THE

VALID ARBITRATION AWARD OF THE

JOINT STATE CARTAGE COMMITTEE

WAS NOT BARRED BY THE TIME LIMITA-

TIONS SET FORTH IN THE UNITED

STATES ARBITRATION ACT

A. THE DECISION OF THE SIXTH CTR-

CULT DEFEATS THE FEDERAL LABOR

POLICY FAVORING THE FINALITY OF

ARBITRATION DECISIONS 200000000...

B. THE COURT OF APPEALS DECISION

DEFEATS THE FEDERAL LABOR POL-

ICY FAVORING THE EXPEDITIOUS

RESOLUTION OF LABOR DISPUTES

Page

Il. THE COURT OF APPEALS ERRED IN

HOLDING THAT THE STATUTE OF LIML-

TATIONS WAS TOLLED WHILE THE RE-

SPONDENT MOVED FOR THREE RE-

HEARINGS OF THE DECISION OF THE

ARBITRATION PANES 2.

A. THE DECISION OF THE SIXTH CIR-

CUIT IS IN IRRECONCILABLE CON-

FLICT WITH PRIOR DECISIONS OF

THIS COURT AND OTHER CIRCUIT

COT Ce AE ee aesticiceectices 20

B. THE SIXTH CIRCUIT’S DECISION

DESTROYS THE SYMMETRY RE-

QUIRED BY FEDERAL LABOR POL-

BP Sik sicise vacances ootesaaeegiate Sesecsakeaiela sSotuecana etnias 25

CG. THE CONGRESSIONAL POLICY FA-

VORING ARBITRATION AND EXPEDI-

TIOUS RESOLUTION OF LABOR DIS-

PUTES IS DISSERVED BY THE SIXTH

CIRCUIT’S TOLLING REQUITIRE-

MENT ..... Ce rca Nes canpiielesecubbcaicen Nah a. 31

Wl. THE COURT OF APPEALS FERRED IN

HOLDING THAT RESPONDENT-EM-

PLOYEE’S AMENDED COMPLAINT

STATED A CLAIM FOR THE BREACH OF

THE DUTY OF FAIR REPRESENTA-

| SRNR UNBORN Cr OnroSRN henvilusers Sent ylerbee Ee yot 34

CCE ON ie eee 45

iil

TABLE OF AUTHORITIES

Cases: Page

Abrams vy. Carrier Corporation, 434 F.2d 1234 (2d

Cir. 1970), cert. denied, 401 U.S, 1009 (1971) .......... 28, 29

Albany Welfare Rights Organization Day Care Center,

Ine. ve. Schreck, 463 F.2d 620 (2d Cir. 1972), cert.

Soma, Gre a Oe Fae oc ee o7

Alexander ve Gardner-Denver Co., 415 U.S. 36

SEO yoo ake Lae PR <a Se Bakes 20, 21

Amalgamated Association of Street, Electric, Railway

and Motor Coach Employees of America vy. Lock-

WINN UD I AD a ihc iaclcsec scenes 42

Anderson v. United Transportation Union, 357 F.2d

eee Ge We a patina Ades Sos 40

Atwood vy. Pacific Maritime Association, 452 F.Supp.

A) Oe Raheive keel 27

Augspurger v. Brotherhood of Locomotive Engineers,

510 F.2d 853 (8th Cir. 1975) ...................c0-0000.......09) 41, 42

Balowshi vy. UAW International Union, AFL-C1O, 372

gh RN | SS) io) vere. ae |

Barbarino v. Anchor Motor Freight, Ine., 421 F.Supp.

BO WR Re a RROD ene ee cise ises. Pelccrbin 12, 13, 15, 16

Barrett v. Safeway Stores, Incorporated, 538 F.2d 1311

(Sth Cir. 1976) ..... Seoeaslaciiies Ladeatbavucbenchs oust Wael aeeasiettns ec ae

Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977....22, 23

Brooks vy. Southwestern Transportation Company, 97

FicUbabee wes SON CINE ROK BOCGD. ci cccckscccinciventdcennnce. 26

Bryaut v. Potts, 528 F.2d 621 (Sth Cir. 1976) ........0........ 23

Page

Buffalo Forge Company vy. United Steelworkers of

America, AFL-CIO, 428 U.S. 397 (1976) ......-....... ya 36

Burnett vy. New York Central Railroad Company, 380

cla. GOR CTO) iia stig ioroet eonaiussiapbowee 27, 31

Burns vy. Union Pacific Railroad, 564 F.2d 20 (8th Cir.

|g ee ena ere ea © sssaaonssbuinbibaaihcapbcinbnidaiedeg nda 21

Butler vy. Local Union 823, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Help-

ers of America, 14 F.2d 442 (Sth Cir. 1975), cert.

dented, 423 U.S. 934 (1976) ....................-.--.000- .28, 29, 30, 31

Cates v. Trans World Airlines, 561 F.2d 1064 (2d Cir.

} 3 4 eee DEP EL LED ce ae: ciajbicinana eae ee 21

Chambers-v. Omaha Public School District, 536 F.2d

Zea (Sth Cir. 1976) 2 eee 23

Chappell d& Co., luewv. Saniangelo, 30 I’.Supp. 599 (D.C.

Conn. 1939) ............. ssnissininsiasatesusisthenctiaiebsan anaemia 34

Chrysler Corporation vy. Civil Rights Commission, 68

Mich. App. 276, 242 N.W.2d 556 (1976) 2:00.00... 21

Cole v. United Steelworkers of America, Local No.

4407, 441 F.Supp. 1546 (W.D. Pa. 1977) 2... ey Bes 11

Conley v. Gibson, 355 US. 4l (A957) ee. .1ee0y OO

Coopersmith v. Supreme Court, State of Colorado, 465

F.2d 993 (10th Cir. 1972) cocccccccccccccccceceseeoseeee Ch TNS 37

Curry Vv. Chrysler Corporation, 95 LARRM, 2356 (ELD.

Bted. ISTE) cn csiccccnccavn snnaetioneins 9 vainesuasniar eset ea tanta ana aan 18

De Arroyo vy. Sindicato De Trabajadores Packing

House, 425 F.2d 281 (1st Cir. 1970) oc. 29

lage

DeLoroto vy. United Parcel Service, Inc,, 401 F.Supp.

408 (D. Mass. 1975) ....... ata ORS a atacereteeue. we ae

Dilly. Greyhound, 435 ¥.2d 281 (6th Cir, 1970) 00.) 42

Dore vy. Nleppe, 522 2d 1369, rehearing denied, 526

ce Eb. ) cr sioatebcannees 19

Dupree vy. Hutgins Brothers, 521 2d 236 (5th Cir.

ei Eee ae eee Fuh Reb alates ; a

Finley vy. Rittenhouse, 416 F.2d 1186 (9th Cir, 1969) 0 37

Fitzgerald vy. Seamaus, 553 F.2d 220 (D.C. Cir. 1977)..22, 28

Fleming v. Chrysler Corporation, 575 2d 1187 (6th

5 caceinnoms TL AO Oe mT aR 26

Florey ve Air Line Pilots Association, International,

575 F.2d 673 (Sth Cir, 1978) .............. oi a

Ford Motor Company vy. Huffman, 845 U.S, 330

noo sdsnicarcapeiisanoisasapiensersstices Bc caadeeses 44

Gamey Vv. Brotherhood of Railway & Steamship Clerks,

313 F.2d 818 (8d Cir, 1963)... iid bipaiccactatabaarceivenesadlly Wn

Galeway Coal Company v. United Mine Workers of

America, 414 U.S, 368 (1974) ............esccsscssswssccseserree 3G

Glowachi vy, Motor Wheel Corporation, 67 Mich, App.

448, 241 N.W.2c 240 (1976) ............ccccccccoscsecescseseeeeseeel 8y 28

Grant v. Mulvihill Brothers Motor Service, 428 F.Supp.

RS) a ee a ee ed 28

Hardee vy, Allstate Services, Inc., 587 F.2d 1255 (4th

I Cc add ocumsstediorsesvdesssnsnainrovessecseroes 40, 43, 44

l’age

Harrison vy. Chrysler Corporation, 558 F.2d 1278 (7th

Oe, DTT) ceccsecacccsecseicrversccerscqnixssseossssosessssvnauivsevssoameaninenveeees 26

Herman vy. Prudence Mutual Casualty Co,, 41 Ml, 2d

468, 244 N.B.2d 809 (1969) ..........:ccccessssseseeseereersessensess 34

Hill y. Aro Corporation, 275 F.Supp. 482 (W.D. Ohio

UE hsscesecastedsnccucksachsasdndebictascenvsstentqansbprteostes os cataabaes 13, 14, 15

Hines vy. Anchor Motor Freight, Inc. 424 U.S. 554

PE neds casszieoaeees Ti ceveses _......8, 15, 26, 84, 86, 38, 39, 44

Hodge v. Service Machine Company, 488 F.2d 347 (6th

6. RB 5 Tetons fie em nN eee panda Aad. Aakeue PAlr Msn rrr re 19

Hoover Motor EBaxpress Co. vy. Teamsters, Chauffeurs,

Helpers and Taxicab Drivers, Local Union No, 327,

217 F.2d 49 (Gth Cir, 1954) ...1.....cccccscsoreseoccorereseersensscees 10

Howerton v. J. Christianson Company, 76 L.R.R.M.

2936 (W.D. Cal. 1971) eed 11

Hubichi v. Ace Industries, Inc., 48% F.2d 519 (8d Cir,

BNE viscwescceremttrestesernareae saan tereiaielaeiran ta ae

Hughes vy. Ranger Fuel Corporation, Division of Pitts-

ton Corp., 467 F.2d 6 (4th Cir. 1972) oso BF

International Brotherhood of Teamsters, Local Union

No, 249 v. Motor Freight Bapress, Ine, 357 F.Supp.

724 (W.D. Pad. 1978) «.............. ORR ah, Se toe 11, 16

International Union of Electrical, Radio and Machine

Workers ve Robbins & Meyers, Ine., 429 U.S, 229

CRD Sccccnites. cede esepen oanaaenens ee

International Union, United Automobide, Aerospace

and Agricultural Workers of America vy, Hoosier

Cardinal Corporation, 883 U.S, 696 (1966). 8, 18, 16, 32

F vic nS

vil

Page

International Union, United Automobile, Aerospace

and Agricullural Workers of America vy. LaCrosse

Cooler Company, 406 F.Supp. 1213) (W.D. Wis,

PUG Rc Acssiisieastsateavicoirer el ae seepsrasetbnr tegen

J. 1. Case Company vy, National Labor Relations Board,

Wek Sie ER RIOR 22s srcitiicccsactacesceeedeumnn eee 10

Johnson vy. Railway Rapress Agency, Inc,, 421 U.S. 454

RBOWOE. di carsshcinesabsectinreatexsssrcaiscontoesivceaad aetna mire

Jolivet v. Elkins, 3886 F.Supp. 261 (D. Md. 1974)... = 24

Jones Vv, City of San Antonio, 568 F.2d 1224 (Sth Cir,

EEO cssessassistsdudoatrn subiesgn ss fulagebayooaen J sivnsttaaieenaes ae

Nauffman vy. Moss, 420 F.2d 1270 (8d Cir, 1970) 000. 87

Lambert vy. Southern Counties Gas Company of Cali-

fornia, 52 Cal, 2d 847, 840 Pied GOS (1959) o4

Lewis Vv. No. 1 Greyhound Lines, Bast, 411 F.Supp, 368

(D. D.C, 1976), aff'd, 555 F2d 1058) (D.C. Cir,

BUST scccichscotes 25, 26, 40, 42, 43

Le Wittes & Sous ve United Furniture Workers, 95 ¥,

Supp. 851 (S.D. N.M. 1951) 0.000... icine: CA

Local 205, United Blectrical, Radio d& Machine Workers

of America vy. General Electric, 233 F.2d 85 (Ast Cir,

1956), and, 3538 US. 547 (1957) 2 PHS CARON PIEER OR

Local 19, Warehouse Processing and Distributive Work-

ers Union ve Buckeye Cotton OU Company, 236 F.2d

776 (6th Cir, 1956) 00... ae AIL ahr IR ad, Seg 10

Lowther vy. Fred W. Albrecht Grocery Company, 97

L.R.R.M. 2278 (M.D. Ohio 1977) ..........ccccccssccsecssseseeees 27, 28

Vili

Page

Lusk v. Fastern Products Corporation, 427 F.2d 705

Lk E.R Ra PERRO eR RIES yO AP ns has eee 39, 41

Manfrin vy. UAW Local 44, 89 L.R.R.M. 2319 (FELD.

Mich. 1975)

Vetal Products Workers Union, Local No, 165, UAW-

AFL-CIO vy. Dorrington Company, 242 F.Supp. 813

(D. Coun. 1965), aff'd, 358 F.2d 103 (2d Civ. 1966) _.11, 12

Metcalf v. Swank, 444 F.2d 1852 (7th Cir. 1971) 37

McGovern v. Wraus, 192 Wis. 558, 213 N.W. 332

(1927) sipiptodiaiowen tide uate facie enemas ere 34

Moline Plow Co.y. Webb, 141 US. 616 (A891) 19

Monarch Asphalt Sales Co., Ine. vy. Wilshire Oil Com-

pany of Texas, AV F.2d 1073 (10th Cir. 1975) 00 28

Morin vy. Buick Motor Division, 91 L.RIRLM. 2578 (16D.

A: ,) ee Meet Pao lng = eoesetineccr: ae

Nolde Brothers, Ine. v. Local No, 358, Bakery and Con-

fectionary Workers Union, AFL-C1O, 430 U.S. 248

GOOEY ie in OO ee 36

Ogletree vy. McNamara, 449 F.2d 93 (6th Cir, L971) 0.) 87

Oppenheim ve Campbell, 571 F.2d 660° (D.C. Cir.

SUE Seis ersaieaeeenep anil DSTO Wills ees Dee

Order of Railroad Telegraphers vy. Railway Eapress

Agency, Inc., 321 U.B. 342 (19438) 2.002... cceseenoee 27

Pesola vy. Inland Tool and Manufacturing, Ine., 93

LB.B.M. 2458 (1D Mieh. 1076) oi. cistoccceceens 18

Pizzuto v. Hall’s Motor Transit Company, 409 F.

Supp. 427 (B.D. Pa. TOS) jo cee ee

Page

Priest v. Wolverine Express, Inc., 87 LARLR.M. 2774

CW2 Mile, TOTR) sci intces. Ee ere oe ae

Reid vy. International Union, United Automobile, Aero

space and Agricultural Implement Workers of Amer-

ica, 479 F.2d 517 (10th Cir. 1973) 00... ; 42

Republic Steel Corporation v. Maddox, 379 U.S, 690

Pt Ge Erk elas aD a Oe TS 7 ...19, 24

Rotolo vy. Borough ot Charleroi, 532. F.2d 920 (8rd Cir.

2 Tagg baer AROS es eaiecf ponene e AD r e SE EN VOCE |

Sanderson vy. Ford Motor Company, 483 F.2d 102 (5th

he BONN. rr a emery beste 29

Sedlarie y. General Motors Corporation, 54 F.RLD. 230

(Be a RN BN cosas vcs ncescavcinek snes axteretonees 37,38

Siskey v. General Teamsters, Chauffeurs, Warehouse-

men and Helpers, Local No, 261,419 F.Supp. 48 (W.D.

Pa. i970) ik, cic eaemisoanes De ee AY au dcasysascc i

Slagley v. [Minois Central Railroad Company, 397 F.2d

Oe CRI ED sci n ccs dha Sdetsarsecnvndinsbasepsee iseien 40

Trail vy. International Brotherhood of Teamsters,

4 . an ve

Chauffeurs and Warehousemen of America, 542 F.2d

Ns Re oo, Sa lassnvvantiayiavesteseuenaivaa-nbaeden 42

United Mine Workers of America v. Jones & Laughlin

Steel Corporation, 378 F.Supp. 1206 (W.D. Pa.

12 BASIS SSK: Ca aaiaas Saar eso Sp lab rcpecncyied alts agian ee

United Office Professional Workers of America v.

Monumental Life Insurance Co., 88 F.Supp. 602

COL Pe BOO) kan Eee Ceenkaet elses = i

Page

United States v. First National Bank of Atlanta, 441

Se POE Cis Ga BED oeckiccrtitenccattemsaccnapcmecbasecemlnion 19

United Steelworkers of America vy. American Manu-

facturing Company, 363 U.S. 564 (1963)... 8, 15, 32, 36

United Steelworkers of America vy. Enterprise Wheel

Cordis SAS UTE, TOG COD ovccsctovsnncsscacsetecrmanrsimareee 8, 15, 32

United Steelworkers of America vy. Warrior & Gulf

Navigation Company, 363 U.S. 574 (1960) 0.0202... 32, 39

Vaca v. Sipes, 386 U.S. 171 (1967) ........... 19, 24, 25, 26, 36, 42

Vandever vy. Bell Helicopter Company, 93 LARR.M.

SUBS CED Te: BOTY vss eccsscemetomenss Bean aE e 28

Walker vy. World Tire Corp., Inc., 568 ¥.2d 918 (8th

RD 1 5 | SER eespo a Ran riesbor Meet Oi bien Od PRO RAN Sree Tew Ne 21

Warren v. International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of Amer-

soe, GO4 F2k: SOE (Bt Oar. BOTB) anna cscs scennteres 25, 26

Washington vy. Chrysler Corporation, 68 Mich. App.

STG, SOS: Tse ee CO RRO aes clitece ceaniensnepnonceernntnsveneion 18, 21

Whitten v. Anchor Motor Freight, Inc., 521 ¥.2d 13835

(6th Cir. 1975) ...... iis tnbssaledaadis deseo sesh s ilove eran 40

Willetts v. Ford Motor Company, 99 L.R.R.M, 239 (6th

RR ont te Serene MOP oct Be Sie lealls 26, 40

Williams vy. Dana Corporation, 54 F.R.D. 473 (ELD.

TT Re «iO eee tease Mem ccrennnrie Seeta eS COMTENCCAR etter 18

Wilson v. Lincoln Redevelopment Corporation, 488 F.

ve BL BL ae: f. | ana Sere nee Re EE Scanian: rors Roar 37

Page

Wilson v. Washington Post, 93 L.R.R.M. 2300 (D.

BOT. BPI oa dices cheweseevseess <a AAT eae viscaiatouens 43

Winter v. Local Union No. 639, 569 F.2d 146 (D.C. Cir.

oY ge i IAN Dh De DED eek A aE aD dire 26

Woods vy. North American Rockwell Corporation, 480

F.2d 644 (10th Cir. 1973) ........ istainaliauastnctipOslapcincaichte coaches .. 42

Federal Statutes:

Clayton Act 00.00.0000... disable coc ecialaeshadesitetiiay ace cestook eh 23

Kederal Arbitration Act, Ch. 392, § 1, 61 Stat. 670

(1947), as amended, 9 U.S.C. § 1, ef seq. o0............. 3, 10

UO veh Lassie ancciiag ses leila eacoec be cgsvgmeeuecawipoviescinn., 3, 10

Sime. 688 WW... ...2.. by €, 10, 11, 13, 14, 16, 17, 18

a OD 8 eine 5 sess cas ch vacccunasincc bce Sesesdacecisd es 2

ae U.S.C, § 1832 ..............: ARTS TE a elk ae eke 3,4

Labor Management Relations Act, Ch. 120, $1, 61

Stat. 136 (1947), 29 U.S.C. §141, ef seq. cocccccccccccccce 11, 45

y 2 eS > es 3, 8, 14, 32, 33, 36, 37, 44

29 U.S.C. §185 ........ Sy accrrs rene tiet wettest eek feces vac, Passim

vil Rights Act of 1870, Ch. 114, 6 16, 116 Stat. 144

Rr, MN RIE, GR OMN sc 8 oo cis, scncudcceoodedctnadcncosec wee

Civil Rights Act of 1871, Ch. 22, 61, 17 Stat. 13 (1871),

42 U.S.C. § 1983 .......... LEER Saa nase EOS sasegutha 22, 23, 24

I I ao ere, 20

Railway Labor Act, Ch. 347, Title 1, § 1, 44 Stat. 577

(1926), 45 U.S.C. § 151 et seq. oo. ececcceeeccceceseseees 35

xii IN THE

Page Supreme Court of the Gnited States

Michigan Statutes: October Term, 1978

M.C.L.A. § G00.5805(7) ....-cccccccocccsscccsccsescessoessosesneseeeeBy 5, 18

M.C.L.LA. © GOO.5807 letatics , ; 3 NO. oe eee eee ee ees

nulecetancoust ELLIS 'TRUCKING COMPANY, INC.,

Med. R. Civ. PL 8(a) (2) , : on an Indiana Corporation, and

at p 4nd S 7 J - i ; ** _

Fed. Re Civ. P. 12(b) (6) 0... seacuty B4, 35, 39, 40 ng ager nig seated cial aaa

a New Mexico Corporation,

Med. R. Civ. P. 56 Diieetiateas Diakseabeees ca ae Petitioners,

vs.

Ta oe | 2 cciutls veneiintcucoindaeins 23

EARL L. SMART

N.Y. Civ. Prac. Law (MeWinney) § 7511(a) . 12 and

LOCAL UNION NO. 299,

Affiliated with International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Petitioners, Millis Trucking Company, Ine. and Navajo-

KMilis Trucking Co., Ine. [hereinatter referred to as Peti

fioners| respectfully pray that a Writ of Certiorari issue

to review the decisions rendered im this cause on July 25,

L978 and August 16, 1978 by the United States Court of

Appeals for the Sixth Cirenit. By Order dated August 16,

1978, the United States Court of Appeals for the Sixth

Cireuit denied your Petitioners’ Motion for Rehearing of

the July 25, 1978 decision. The mandate of the United

States Court ef Appeals for the Sixth Circuit was entered

on August 23, 1978.

OPINIONS AND ORDERS BELOW

The decision of the United States Court of Appeals for

the Sixth Cireuit, decided and entered on July 25, 1978,

is reported at 580 F.2d 215 (6th Cir. 1978) and appears in

the Appendix at 8a.

The Order of the United States Court of Appeals for

the Sixth Circuit, entered on August 16, 1978, denying

Petitioners’ Motion for Rehearing, appears in the Ap

pendix at I4a.

The Memorandum Opinion and Order of the United

States Distriet Court for the Kastern Distriet of Mieh-

igan, dismissing Respondent’s complaint, decided and

filed on February 13, 1976, is reported at 409 F.Supp. 129

(18.D. Mich. 1976) and appears in the Appendix at Ta,

JURISDICTION

The Opinion of the United States Court of Appeals for

the Sixth Cireuit was entered on July 25, 1978. The Order

of the United States Court of Appeals for the Sixth Cir-

cuit denving Petitioners’ Motion for Rehearing of said

decision was entered on August 16, 1978, The mandate of

the United States Court of Appeals for the Sixth Cireuit

was entered on August 28, 1978. This Petition for a Writ

of Certiorari was timely filed within ninety (90) days.

This Court's jurisdiction is invoked under 28 U.S C,

§ 1254(1).

QUESTIONS PRESENTED

Did the Court of Appeals err in holding that the

Respondent-Employee’s attempt to set aside the valid

arbitration award of the Joint State Cartage Commit-

tee was not barred by Appellant’s failure to seek to

vacate the arbitration award within the time limita-

tions set forth in the United States Arbitration Act,

9 U.S.C. § 1, et seq?

Did the Court of Appeals err in holding that the

applicable Michigan statute of limitations was tolled

as to the Respondent-Employee’s claim for breach of

contract while the Union and Respondent moved for

three rehearings after the September 16, 1969 decision

of the arbitration panel?

Did the Court of Appeals err in holding that Respon-

dent-Employee’s Amended Complaint stated a claim

for the breach of the duty of fair representation which

would allow the Respondent-Employee to proceed

against the Petitioners on his alleged claim for breach

of a collective bargaining agreement?

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The relevant constitutional provisions, statutes and rules

at issue are: 9 U.S.C. $1; 9 U.S.C, § 12; 28 U.S.C. § 1331;

29 ULS.C. § 178(d); 29 U.S.C. § 185; Rule 12(b)(6) of the

Federal Rules of Civil Procedure; Mieh. Comp. Laws Ann.

S§ 600.5805(7), 600.5807, which are set forth seriatim in

the Appendix beginning at 49a,

STATEMENT OF THE CASE

A. Procedural History of the Litigation.

This appeal is taken from the July 25, 1978 and August

16, 1978 decisions of the United States Court of Appeals for

the Sixth Cireuit. These decisions reversed the dismissal

of the Respondent-Employvec’s claim for breach of a col-

lective bargaining agreement that lad previously been

entered in the United States District Court tor the astern

District of Michigan, Southern Division, for failure to

state a elaim upon which relief could be granted,

Respondent Karl L. Smart [referred to herein as Re-

spondent| filed his initial, one count complaint on Oetober

16, 1973 against Ellis Trucking Company, Ine., and Navajo-

Mllis Trucking Co., Ine, [referred to herein as Petitioners].

(loa). Jurisdiction was premised upon 28 U.S.C. © 1331

since Petitioners are foreign corporations. The Respondent

alleged that Petitioners bad breached a collective bargain-

ing agreement by discharging him without just cause. Peti-

tioners filed a Motion to Dismiss Plaintiff’s Complaint on

March 19, 1974 alleging that the grievance and arbitration

procedure of the collective bargaining agreement was Re-

spondent’s sole and exelusive remedy, (19a). On June 17,

174, Respondent filed an Amended Complaint which eon-

tained second and third counts and added Loeal Union No.

209 of the International Brotherhood of Teamsters, Chauf-

feurs, Warchousemen and Helpers of America, [referred

to herein as Union|. (27a). Jurisdiction over the Union

was promised upon 29 U.S.C. $185. Count I again alleged

a breach of the collective bargaining agreement. Count IT

alleged that the Union had breached its duty of fair rep-

resentation and Count IIT stated that Petitioners and the

Union had conspired against Respondent.

Ou July 3, 1974, Petitioners filed a Motion to Dismiss

Plaintiff’s Amended Complaint on the grounds that (1)

the prior arbitration award against Respondent was final;

(2) Respondent’s attempt to vaeate the arbitration award

was barred by the three month limitation period set forth

in Y U.S.C. 6 12; (5) Respondent’s claims for an alleged

breach of the duty of fair representation and conspiraey

were barred by the three vear statute of limitations con-

tained in M.C.L.A. © 600.5805(7); and (4) the Amended

Complaint tailed to state a claim upon which relief could

he granted. (47a). The Union filed a Motion to Dismiss the

Amended Complaint on July 16, 1974 and claimed therein

that the action was barred by the aforementioned Michigan

three year statute of limitations, After oral argument on

the Motions to Dismiss on August 12, 1974, Respondent

filed a Second Amended Complaint on August 22, 1974

without leave of the Court.

On February 13, 1976, the Honorable Lawrence Gubow

issued a Memorandum Opinion and Order (la) granting

dismissal of the Amended Complaint. The claim for breach

of the collective bargaining agreement was dismissed

against Petitioners on the basis that the arbitration award

was final and binding. (4a). The claims for breach of duty

of fair representation and conspiracy were dismissed for

the reason that those actions were barred by the three

vear statute of limitations. (6a-7a). The decision also re-

jected Respondent's Second Amended Complaint as being

improperly filed. (Sa).

In its July 25, 1978 decision, the United States Court

of Appeals for the Sixth Cireuit affirmed the dismissals

of Counts TI and TIT based upon the statute of limitations,

(10a). However, the Sixth Cireuit Court of Appeals re-

versed the dismissal of Count I of the Amended Com-

plaint, which alleged wrongful discharge, after finding

that the statute of limitations was tolled during the period

that Respondent and the Union made three requests for

rehearing and had a second-intervening arbitration before

the Joint State Cartage Commitiee.

B. Statement Of Facts Relevant To The Issues Presented

For Review.

Respondent was discharged from his employment by

Petitioners on September 15, 1969 for refusing to perform

services for the Kroger Company, a customer of Veti-

tioners, and for stealing time. (la). Prior to his discharge

on September 15, 1969, Appellant received warning notices

on January 24, 1969 and January 31, 1969. The warning

notice of January 31, 1969 informed Respondent that a

future violation would result in discharge.

Artiele 43 of the collective bargaining agreement be-

tween Petitioners and the Union, who represented the Re-

spondent, provided for arbitration before the Joint State

Cartage Committee, (2la-23a). Article 43, Section 1, pro-

vided that ‘‘such decision will be final and binding upon

both parties.’’ (22a).

Respondent's discharge was submitted to the Joint State

Cartage Committee and upheld on September 16, 1969.

(Sa). A rehearing was denied on October 21, 1969, The

Union sought and was eranted a rehearing on December

19, 1969 and the discharge was upheld at the rehearing

held on January 20, 1971. (Sa). A third rehearing was

requested and denied by the Joint State Cartage Com-

mittee on April 13-14, 1971,

The Amended Complaint, filed on June 17, 1974, alleged

that the Union breached its duty of fair representation by

failing to eall certain witnesses on Respondent’s behalf.

This was the sole faetual allegation made in support of

the claim that the Union had breached its duty of fair rep-

resentation,

REASONS FOR GRANTING THE WRIT

The July 25, 1978 decision of the Sixth Cireuit Court of

Appeals held that the claim for the breach of duty of fair

representation was barred by the applicable statute of

limitations and mandated a dismissal of the Union, How-

ever, the Sixth Cireuit: then proceeded to hold that) the

Respondent could still pursue a canse of action for breach

of the collective bargaining agreement against the Peti

tioners.

The Sixth Circuit also held that, despite the fact that

the Respondent-Kimployvee was seeking to overturn the

prior arbitration award, whieh had upheld his discharge,

the Respondent was not bound by the time limitations cou.

tained in the United States Arbitration Aet, 9 USC, 6 12.

The Sixth Cirenit also ruled that the applicable statute of

limitations was tolled while the Respondent-lMmplovee and

the Union moved for three suceessive rehearings.’ As a

result, the Union was dismissed while the Petitioners re

mained a party defendant to the litigation.

Minally, the Sixth Cireuit: held) that mere conclusory

allegations of a breael of the duty of fair representation,

not supported by any specific facts, was sufficient to allow

an oomiplovee to relitigate a claim for wrongful discharge

even though the propriety of the diseharge lad been de-

cided by final and binding arbitration,

' The tolling argument was never raised by the Respondent in the

lower court or the Court of Appeals, and thus was raised sia

sponte by the Sixth Circuit in its decision.

Petitioners submit that the July 25, 1978 decision under.

nines and frustrates three settled principles of federal

labor policy and contlicts with numerous decisions of this

Court and the courts of appeals, First, it enables employees

fo attack arbitration decisions, which were rendered years

prior to the institution of litigation, thereby seriously

viscerating the congressional policy relative to the finality

of arbitration awards. (See, 29 U.S.C. ° 178(d)). Not only

aoes this holding frustrate the congressional poliey em-

hodied in 29 US. s Precd), but. more importantly, it is

in dircet coutlict with this Court's consistent pronounce-

nents relative to the federal labor poliev favoring the

finality of arbitration awards in labor disputes, See, United

Steclworkers of Mimerica y, Muterprise Wheel Corp., 3865

U.S. 598, 599 (1963); United Steelworkers of clmerica Vv.

American Manufacturing Company, 808° US. 564, 566

(1965); Mines ve duehor Motor Freight, Ine, 424 US, 554,

562.563 (1976), |

Secondly, the decision, in first rejecting the use of the

three mouth limitation period contained in 9 USC. 64

and then extending the statute of limitations through the

use of an artificial tolling concept, impedes and frustrates

the federal labor poliew favoring the rapid disposition of

lahordisputes, See, literualioual Union, United Automobile,

Aerospace and Agricultural Implement Workers of Amer

wa NV, llooster Cardinal Corporation, 888 UWS. 696, 707

(1966),

Minally, by placing the employer in the impossible posi-

tion of defending an untimely claim for breaeh of the duty

of fair representation without the Union as a party to the

proceedings and without access to witnesses and evidence,

labor arbitration becomes a totally undesirable vehicle for

labor dispute resolution,

The failure of the Sixth Cireuit to recognize these im

portant and fundrmental policies of federal labor law led

that Court to commit three fundamental legal errors that

not only prejudice the Petitioners in the instant ease but

will continue to undermine labor arbitration in this coun:

try until said decision is reversed,

THE COURT OF APPEALS ERRED IN HOLDING

THAT THE RESPONDENT-EMPLOYEE’S ATTEMPT

TO SET ASIDE THE VALID ARBITRATION AWARD

OF THE JOINT STATE CARTAGE COMMITTEE

WAS NOT BARRED BY THE TIME LIMITATIONS

SET FORTH IN THE UNITED STATES ARBITRA-

TION ACT.

Count |oof Respondent's A\imended Complaint was con-

veniently labeled as a suit to redress an alleged wrongful

discharge in breach of the collective bargaining agree-

ment, Llowever, the question of whether or not there was a

breach of the labor agreement was determined by the Joint

State Cartage Committee on September 16, 1960 wherein

the propriety of Respondent's discharge was upheld. Tow-

ever, the original complaint was not filed by the Respondent

until Getober 16, 1975.

A review of Count | of the Amended Complaint reveals

that Appellant is seeking to set aside the September 16,

1969 arbitration award since the issne of breach of con-

tract lias already been deeided by the arbitration panel in

accordance with the provisions of the labor agreement.

Thus, there can be no question whatsoever that the in-

stant suit, regardless of the faet that it is brought under

Section 301 of the Labor and Management Relations Aet,

20 ULS.C. S185, is, in reality, a snit to vaeate the arbitra-

tion award, Given that facet, Petitioners submit that the

timeliness of this action is governed by the United States

Arbitration Aet, 9 US.CL 1, ef seqg@ The time limitations

for vacating an arbitration award are set forth in 9 U.S.C,

» 12 which provides ;

‘Notice of a motion to vacate, modify or correct

an award must be served upon the adverse party

or his attorney within three months after the award

is filed or delivered.’’

Since Respondent’s complaint was not filed until Oetober

16, 1978, it is self-evident that Respondent far exceeded

the three mouth period of limitations,

The Sixth Cireuit, ino rejecting the applicability of 9

U.S.C. 0 12, stated that: Phe © S01 action is ‘independent?

of the grievance process.’’ (ia). In oso holding, without

the citation of any applicable authority, the Sixth Cirenit

departed from a long line of legal precedents that have

“In the lower court, the Respondent argued that the United States

Arbitration Act was inapplicable given the exclusion in 9 U.S.C,

§$ 1 relative to contracts of employment, However, this Court’s

ruling in J, 7, Case Company Vv. National Labor Relations Board,

$21 U.S, 832, 834-335 (1948), made clear that a collective barywain-

ing agreement is not a contract of employment, Based upon this

Court’s decision in J, 7. Case Campany Vv, National Labor Rela-

tions Board, supra, numerous courts, including the Sixth Circuit,

have held that a collective bargaining agreement is not a contract

of employment and that 9 U.S.C. $1, et seq applies with full force

and effect to arbitrations under collective bargaining agreements.

See, Hoover Motor Express Co. Vv. Toamsters, Chauffeurs, Helpers

and Taxicab Drivers, Local Union No, 327, 217 F.2d 49, 51 (6th

Cir, 1954); Local 19, Warehouse Processing and Distributive

Workers Union Vv. Buckeye Cotton Oil Company, 236 F.2d 776,

781 (6th Cir, 1956); Local 205, United BRlectrical, Radio & Ma-

chine Workers of America V. General Electric, 233 F.2d 85, 97-

100 (Ist Cir, 1956), aff'd, 353 U.S, 547 (1957); United Office

Professional Workers of America Vv, Monumental Life Insurance

Co,, 88 F.Supp. 602, 606 (E.D, Pa, 1950); LeWittes & Sons v.

United Furniture Workers, 95 F.Supp, 851, 855-856 (S.D. NM.

1951),

—

a es

- - =

held that the time limitations contained in 9 U.S.C, § 12 or

similar state arbitration acts apply to actions brought

under $801 of the Labor Manavement and Relations et."

In Metal Products Workers Union, Local No, 164, UAW .-

AFL-CIO vy Torrington Company, 242 F.Supp, 813° (dD.

Coun, 165), aff'd, Sd8 bed 108 (2d Cir, 1966), the plain-

tiff-union brought suit against the employer under § 301

in order to enforce an arbitration award, The employer

contended that the Connectient statute of limitations was

applicable rather than 9 US.CL © 12. In rejecting that con-

tention, (he district court held that 9 U.S.C. 9 12 applied

fo an action brought under © 301 based upon the following

rationale:

“The Court sees no reason to depart from the

firmly established practice in this Cireuit of exercis-

ing jurisdiction pursuant to Section 801 (a) in actions

involving the obligations of parties to arbitrate under

a collective bargaining agreement where the remedy

sought is one authorized by the Arbitration Aet.

It follows that the period of limitation applicable

in the instant proceeding is the three month period

preseribed by the United States Arbitration Act and

not, as the Company urges, the shorter Connecticut

* See, International Union, United Automobile, Aerospace and Agri-

cultural Implement Workers of America V, LaCrosse Cooler Com-

pany, 406 F.Supp, 12138, 1214-15 (W.D, Wis, 1976) ; International

Brotherhood of Teamsters, Local No, 249 Vv. Motor Freight Px-

press, Ine,, 357 F.Supp. 724, 725 (W.D, Pa, 1978); DeLoroto

v, United Parcel Service, Inc,, 401 F.Supp, 408, 409 (D, Mass.

1975); United Mine Workers of America Vv. Jones & Laughlin

Steel Corporation, 3878 F.Supp, 1206, 1210-11 (W.D, Pa, 1974) ;

Siskey v. Generet Teamsters, Chauffeurs, Warehousemen and

Helpers, Local No, 261, 419 F.Supp, 48, 50, (W.D, Pa, 1976) ;

Cole v. United Steel Workers of America, Local No, 4407, 441

F.Supp. 1846, 1871 (N.D. Pa, 1977); Pizzuto vy. Hall’s Motor

Transit Company, 409 F.Supp. 427, 429 (E.D, Pa, 1976) ; Hower-

ton Vv. J. Christianson Company, 76 L.R.R.M, 2936, 2988 (N.D, Cal.

1971).

period. Although the Arbitration Act itself confers

no jurisdiction upon this Court, ‘it does provide an

additional procedure and remedy in’ the federal

courts where jurisdiction already exists.’ The Court,

having determined that Seetion 801 (0) independently

establishes its jurisdiction on the parties on the sub-

ject matter of the action, finds that proceedures au-

thorized by the Arbitration Aet, including the three

month limitation period, were available to the

Union.’ 242 F.Supp, at SES-S19.

In Barbarimo vy, Anchor Motor Freight, Ine,, 421 F.Supp.

10038 (W.D. N.Y. 1976), that plaintiff?! commeneed an ae-

tion under © S0L alleging a breach of the collective bar-

eaining agreement due to wronglul discharge from his

employment. The issue of sllewed breach of contraet had

already been considered and determined by a Joint State

Cartawe Comimittee as in the subjeet matter case. There-

after, the plaintiff amended his complaint to add a elaim

against the union for breach of the duty of fair represen-

tation, In that case, the employer evened that the three

mouth limitation contained in N.Y, Civ, Prae. Law (Me-

Kinney) § 7511(.), whieh applied to the vacating or modi-

ving of an arbitration award, was the applicable period

of limitations, [mn accepting this contention, that Court

stated:

“Tt is well settled that, in suits brought pursuant

to Section 301 of the Labor Management Relations

Act, the federal district court must apply the per-

tinent statute of limitations of the state in which it

sits. International Union, United Auto, ete. Workers

v. Hoosier Cardimal Corp,, 888 U.S. 696, 86S. Ct.

1107, 16 L, Md. 2d 192 (1966), When such actions

seek to vaeate arbitration awards, courts in other

jurisdictions have consistently applied the statute

—

of limitations pertaining to appeals from such awards

rather than the longer statute of limitations govern-

ing actions bottomed on written contracts, (Citations

omitted), Federal labor poliey favors the appheation

of shorter periods of limitation, UAW. vo Moosier

Cardinal Corp, supra.’ 421 b.Supp. at 1006,"

A similar result, while dealing with facets similar. to

those present in the subjeet matter case, was reached in

Hilly. Aro Corporation, 275 F.Supp. 482 (N.D, Ohio 1967).°

In /7e/7, the plaintiff! was discharged and his discharge was

upheld by an arbitrator, Plaintiff then instituted suit) in

federal court seeking to vaeate the award by alleging a

conspiracy between the union and employer and a breach

of the duty of fair representation by the union. The em

ployer responded by moving to dismiss on the grounds

that the plaintiff had failed to bring suit within the three

month limitation period contained in beth the Ohio and

United States Arbitration Nets. dn granting the employer's

motion to dismiss, the Court held:

‘Under federal labor law, the award would be

reviewable only to the limited extent provided for

'In International Union, United Automobile, Aerospace and Agri-

cultural Implement Workers of America V, Hoosier Cardinal Cor-

poration, supra, this Court held that the most applicable state

statute of limitations governed actions under § 301, 888 U.S, 696,

704, However, in that case, the § 301 action was to enforce the

provisions of a collective bargaining agreement and did not in-

volve a suit to vacate, modify or alter an arbitration award as

in the instant case, Thus, there was no federal statute of limita-

tions, In the instant case, given the fact that Respondent seeks

to set aside the arbitration award, it is clear that there is a

federal statute of limitations which is embodied in § 12 of the

United States Arbitration Act, Obviously, the limitation period

in § 12 would only apply to those suits that, in essence, seek to

vacate a prior arbitration award,

*The Sixth Circuit, in its y osowe in the instant case, recognized

that the Hill decision was factually applicable to the instant case

but, — any discussion, refused to follow that decision.

(18a).

in the Ohio and Federal Arbitration ets, But even

that limited review has now been lost by the failure

to act within the time limitation. The first cause of

action therefore does not state a claim upon which

relief can be granted and the company’s motion to

dismiss will be granted.’? 275 F.Supp. at 487,

A reading of J//i/l reveals that it is faetually identical

to the ease at bar. As in the instant case, that plaintiff

brought suit under $301, Moreover, Respondent is seeking

the same relief from the courts that was denied to him

by the arbitration panel. To allow plaintiff to label a elaim

as a breach of contract and thereby seek to vacate an ar-

bitrator’s award would be the classic example of asserting

form over substance and would subvert the national labor

policies favoring finality of labor arbitration awards and

the expeditious resolution of labor disputes.

Despite this unbroken line of precedents which have

clearly held that suits to vacate arbitration awards under

6 301 are governed by the time limitations in 9 U.S.C, § 12

or similar state arbitration acts, the Sixth Cirenit refused

to affirm the dismissal of the claim for breach of contract.

Thus, as matters stand, the decision of the Sixth Cireuit

is in direct confliet with the decisions of every court that

has previously decided this matter.

Not only does the decision of the Sixth Cireuit confliet

with all other court decisions on this issue but, more im-

portantly, it defeats two fundamental policies of federal

labor law.

A. The Decision Of The Sixth Circuit Defeats The Federal

Labor Policy Favoring The Finality Of Arbitration

Decisions.

It is well settled that a paramount policy of federal

labor law, as embodied in 29 U.S.C. § 173(d), is the resolu-

tion of industrial disputes by arbitration rather than litiga-

tion, In an attempt to further this expressed congressional

purpose, this Court has consistently held that national

labor poliey favors the finality of arbitration awards in

labor disputes, See, United Steel Workers of America vy,

Kuterprise Wheel Corp,, 363 U.S, 593, 599 (1963); United

Steelworkers of America vy. American Manufacturing Com-

pany, 3603 US. 564, 566 (1963); Hines vo ctnehor Motor

Freight, Inc., 424 U.S. 554, 562-568 (1976).

The courts which have applied 9 U.S.C, $12 have rea-

soned, in part, that the shorter limitation period furthers

the federal labor policy supporting the finality of arbitra-

tion awards, See, Hdl y, Aro Corporation, 275 F.Supp. 482,

486-487 (N.D. Ohio 1967); International Union, United

Aulomobile, Aerospace and Agricultural Implement Work-

ers of .tmerica y, LaCrosse Cooler Company, 406 F.Supp.

1215, 1215 (W.D. Wis. 1976); Barbarino v. Anchor Motor

Freight, Ine, 421 Supp. 1008, 1006 (W.D. N.Y. 1976),

Obviously, the application of the three mor th limitation

period furthers the federal poliey favoring finality of ar-

hitration decisions. On the other hand, the Sixth Cireuit’s

decision clearly disserves this findaimental policy of fed-

eral labor law and the end result is to allow an emplovee

fo attack an arbitration award that was initially more than

four years prior to the institution of suit. When an em-

ployee can take advantage of statutes of limitations whieh

can extend the period of vulnerability of an arbitration

award for in excess of four years, it seriously impedes and

hampers the federal policy favoring finality. of arbitra.

tion awards,

B. The Court Of Appeals Decision Defeats The Federal

Labor Policy Favoring The Expeditious Resolution Of

Labor Disputes.

In Juternational Union, United Automobile, Avrospace

and Agricultural licplement Workers of America y. Hoosier

Cardinal Corporation, O83 US. 696 (1966), this Court ree-

ognized the federal labor poliey favoring the rapid dis-

position of labor disputes :

"The characterization that Indiana law im-

poses upon this action does not lead to any confliet

with federal labor poliey. Indeed, to the extent that

a policy is manifest in the Labor Management Rela-

tions Act, it supports acceptance of the charaeteriza-

tion adopted here, The six months’ provision govern-

ing unfair labor practice proceedings, GL Stat. 146,

29 U.S.C. 9 160(b), suggests that relatively rapid

disposition of labor disputes is a goal of federal

labor Jaw.?? 883 U.S. at 707.

The recognition in Mloosier Cardinal tavoring rapid dis-

position of labor disputes, has been consistently followed

by the lower courts as a policy rationale for applying the

three month limitation period in 9 ULS.C. © 12. See, United

Mine Workers of America vy. Jouwes & Laughlin Steel Cor-

poration, 378 F.Supp. 1206, 1211 (W.D. Pa. 1974);

International Brotherhood of Teamsters, Local Union No.

249 v. Motor Freight Marpress, Ine, B57 K.Supp. 724, 726

(W.D. Pa. 1973); Barbaro ve Anchor Motor Freight,

Tie. 421 F.Supp. 1005, 1006 (W.D. N.Y. 1976).

The application of 9 U.S.C. © 12, when dealing with eases

involving arbitration awards, clearly furthers the poliey

behind rapid disposition of labor disputes, On the other

hand, the Sixth Cireuit’s ruling, which summarily” re-

jected the applicability of 9 U.S.C. 8 12, extends the vul-

nerability of arbitration awards to various limitation per-

iods depending on the state in whieh the cause of action

accrued, Moreover, the Sixth Cireuit’s decision removes

the possibility of having a uniform period to govern suits

lo set aside, vacate or modify arbitration awards,

The Sixth Cirenit ignored this fundamental poliey ra

iontle when it held that the three month limitation period

In 9 USC. 12 was inapplicable to actions brought under

\ 801, This case now presents this Court with the oppor

tunity to definitively hold that snits to vacate arbitration

awards, even when labeled as contract actions under | 304,

are woverned by the uniform limitation period in 9 U.S.C,

612 and thereby further the dual policies of federal labor

law favoring the finality of arbitration awards and the

rapid disposition of labor disputes.

THE COURT OF APPEALS ERRED IN HOLDING

THAT THE STATUTE OF LIMITATIONS WAS

TOLLED WHILE THE RESPONDENT MOVED FOR

THREE REHEARINGS OF THE DECISION OF THE

ARBITRATION PANEL.

In the event that 9 U.S.C. - 12 is inapplicable, the Sixth

Circuit correctly held that the most analogous state statute

of limitations was the limitation period dealing with in-

juries to persons contained in M.C.L.A. © 600,5805(7)."° The

Sixth Circuit held that the three vear statute of limita-

tions barred the action for the alleged breach of the duty

of fair representation.

However, the Sixth Circuit then departed from settlea

precedent by holding that the claim for wrongful discharge

against the Petitioners was not barred by the three year

statute of limitations. The Sixth Cireuit reached its eon-

clusion by holding that the statute of limitations was tolled

while the emplovee moved for three rehearings. Thus, the

" There can be no question, in Michigan, that the three year stat-

ute of limitations applies to claims for breach of the duty of fair

representation. See, Glowacki Vv. Motor Wheel Corporation, 67

Mich. App. 448, 462-463, 241 N.W. 2d 240 (1976); Washington

V Chrysler Corporation, 68 Mich. App. 374, 377, 242 N.W.2d

781, 782 (1976); Priest v. Wolverine Express, Inc., 87 L.R.R.M.

2774, 2775 (W.D. Mich. 1974); Manfrin v. UAW Local 44, 89

L.R.R.M. 2319 (E.D. Mich. 1975) ; Morin v. Buick Motor Division, 91

L.R.R.M. 2578, 2579 (E.D. Mich. 1976) ; Pesola v. Inland Tool and

Manufacturing, Inc., 93 L.R.R.M, 2458, 2460 (E.D. Mich. 1976);

Williams Vv. Dana Corporation, 54 F.R.D. 473, 474 (E.D. Mich.

1971). The Michigan courts have also ruled that a claim against

an employer for wrongful discharge is also governed by the three

year statute of limitations. See, Glowacki v. Motor Wheel Corpo-

ration, 67 Mich. App. 448, 462-463, 241 N.W.2d 240 (1976) and

Curry V. Chrysler Corporation, 95 L.R.R.M. 2356, 2357-2358 (E.D.

Mich. 1977). It must be noted that, in neither Curry nor Glow-

acki, had the matter proceeded to arbitration so there was no

question as to the applicability of the limitation period for vacat-

ing an arbitration award.

al CON le i

statute of limitations was tolled for over nineteen months

after the September 16, 1969 arbitration award.

In reaching this conclusion, the Sixth Cireuit held that,

since exhaustion of contractual remedies was a prerequi-

site to court litigation under | 301, an employee should

not be penalized for exhausting these procedures. (1a).

Petitioners submit that tolling the statute of limitations

while an employee, at his own discretion, seeks mumerous

rehearings violates federal labor law poliey favoring the

finality of arbitration awards and the expeditious resolu-

tion of labor disputes.

It is elementary that a cause of action accrues, for pur-

poses of computing the statute of limitations, on the first

day on whieh a cause of action could have been mantained.

See. Moline Plow Co. ve Webb, 141) U.S. 616, 625-624

1891); Oppenheim vy. Campbell, 571 F.2a 660, 662 (D.C.

Cir. 1978): Modge v. Service Machine Company, 438 F.2d

347. 349 (6th Cir. 1971); United States v. First National

Bank of Atlania, 441 F.2d 906, 908-909 (Sth Cir. 1971);

Dore v. Rleppe, 522 F.2d 1369, 1373, reh caring denied, 526

B.2d 697 (Sth Cir, 1976).

Petitioners do not dispute the fact that exhaustion of

contractual remedies is a prerequisite to suit under Section

B01. Sec, Republic Steel Corporation v. Maddow, 379 US.

650, 652-653 (1965); Vaca v. Sipes, 886 U.S. 171, 185 (1967).

In the case at bar, however, all contractual remedies were

exhausted on September 16, 1969 when the Joint State Car-

tage Committee upheld the Respondent's discharge, This

decision was final and binding. (22a). At that time, the

Respondent's cause of action accrued under. 301 since

the Respondent could then have maintained a suit for al-

leved breach of the collective bargaining agreement,

By holding that the statute of limitations was tolled

While the Respondent voluntarily pursued three rehear-

ings, Which were neither authorized nor required by the

applicable collective bargaining agreement, the Sixth Cir-

cuit’s decision is in irreconcilable confliet with prior decis-

sions of this Court as well as the decisions of mumerous

other cirenit courts of appeals. Additionally, the Sixth

Cireuit’s ruling does a disservice to the congressional pol-

ities favoring final and binding arbitration and the ex-

peditious resolution of labor disputes. The ramifications

of the Sixth Cirenit’s holdine will be discussed separately,

A. The Decision Of The Sixth Circuit Is In Irreconcilable

Conflict With Prior Decisions Of This Court And

Other Circuit Courts Of Appeals.

Since a | SOL suit conld have been maintained by Re-

spondent at any time after September 16, 1969, it is clear

that Respondent's voluntary choice to seek three rehear-

ings cannot toll the statute of limitations.

The Sixth Cireuit’s ruling stands in direct contliet with

decisions of this Court that have considered analogous

factual situations. Mor example, in lutervational Union of

Klectrical, Redio and Machine Workers v. Robbins &

Meyers, Tne, 429 US, 229 (1976), a black female requested

that the TSO day filing requirement in Tithe VID of the

the grievance procedure in the collective bargaining agree-

ment was being exhausted. In rejecting the argument that

the statutory filing requirement was tolled during the

pendency of the grievance proceedings, this Court, in re-

ferring to its prior decision in) Alexander vy. Gardwer-

Denver Co.,, 415 US. 36 (1974), reasoned as follows:

“We reason that the contractual rights under the

collective bargaining agreement and the statutory

rights provided by Congress under Title VIT ‘have

legally independent origins and are equally available

to the aggrieved employee,’ 415 U.S. at 52, 39 L. Kd.

2d 147, 94S. Ct. 1011, and for that reason we eon-

eluded :

‘[L|n instituting an action under Title VII, the

employee is not seeking review of the arbitrator’s

decision. Rather, he is asserting a statutory right

independent of the arbitration process.’ ’’ 429 U.S.

at 236.7

In light of the Sixth Cireuit’s statement in this case

that: ‘The § 301 action is ‘independent’ of the erievance

process,’’ (18a), it is clear that both Alevander and Rob-

bins & Mevers mandate a finding that the Respondent's

requests for three rehearings of the September 16, 1969

arbitration award did not toll the statute of limitations

for § 801 purposes.

An analogous situation also existed in Johnson y. Lail-

way Express Agency, Inc., 421 U.S. 454 (1975) wherein

that plaintiff argued that the filing of a Title VII charge

with the Equal Employment Opportunity Commission tolled

the statute of limitations under 42 U.S.C. § 1981, This

Court flatly rejected this contention by holding that the

administrative proceedings before the ElOC did not toll

the statute of limitations relative to the claim under 42

U.S.C. {1981 since the two statutes were separate and

independent.*

7 Accord: Walker v. World Tire Corp., Inc., 563 F.2d 918, 919 n.

1 (8th Cir. 1977) ; Chrysler Corporation v. Civil Rights Commis-

sion, 68 Mich. App. 276, 288-289, 242 N.W.2d 556 (1976).

8 Accord: Jones Vv. City of San Antonio, 568 F.2d 1224, 1226 (5th

Cir. 1978); Burns v. Union Pacifie Railroad, 564 F.2d 20, 21 (8th

Cir. 1977); Dupree Vv. Hutgins Brothers, 521 F.2d 236, 288 (5th

Cir, 1975); Cates v. Trans World Airlines, 561 F.2d 1064, 1072-

1073 (2d Cir. 1977); Washington v. Chrysler Corporation, 68

Mich. App. 374, 380, 242 N.W.2d 781 (1976).

The cireuit courts of appeals, in analogous fact situ-

ations, have consistently held that pursuit of optional

administrative remedies does not toll the statute of limi-

tations relative to claims under specific statutes. For ex-

umple, in Bireline vy. Seagondollar, 567 F.2d 260 (4th Cir.

1977), the plaintiff-teacher was notified that she would

receive a terminal contract on May 19, 1970. The plaintiff

requested reconsideration and, thereafter, requested an

administrative appeal which was denied on October 25,

1971. An action was then filed on June 29, 1973 under 42

U.S.C. § 1983. In rejecting the plaintiff's claim that the

statute of limitations was tolled while she sought recon-

sideration and an administrative hearing, the Fourth

Cirenuit stated:

‘While plaintiff was granted an administrative

hearing after May 19, 1970, and it may have been

appropriate for her to have delayed filing her com-

plaint until after its conclusion, the pendency of the

administrative consideration did not extinguish the

legal right to proceed in court or suspend it. The

fact that she was unsuccessful in the administrative

reconsideration did not create a new cause of action;

it only made it apparent that if she were to obtain

relief it could only come as a result of a suecessful

lawsuit commenced within three years following May

19, 1970.°? 567 F.2d at 263.

In Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir. 1977),

the plaintiff was terminated on January 5, 1970 from his

position with the United States Air Foree, The plaintiff

appealed to the United States Civil Service Commission

on January 20, 1970 and, after securing partial relief trom

the administrative body, instituted suit on January 25,

1974. In holding that the proceedings before the Civil Serv-

ice Commission did not toll the statute of limitations, that

court of appeals stated;

“Since appellant had the option to bring an action

for the harm done to him by appellees concurrently

with his recourse to the CSC, he cannot now un-

timely invoke the judicial remedy beeause the ad-

niinistrative one does not make him whole, The choice

of whether to pursue one remedy or the other, or

both, may be difficult, but Fitzgerald had the choice,

and was not barred from the damages action by an

exhaustion requirement, There was no guarantee

that the CSC route would be successful, speedy or

complete, But the administrative and judicial rem-

edies were independent, And the limitations period

ran on the judicial remedy independently of the CSC

proceeding.” 553 F.2d at 226-227. (emphasis added).°

As in Bireline and Fitzgerald, the plaintiff, in the sub-

ject matter case, had fully exhausted all administrative

remedies on September 16, 1969.

As of September 16, 1969, the judicial and any further

optional contractual remedies were totally independent and

plaintiff could have pursued either or both of theese reme-

dies, Under the settled decisions of this Court and other

cirenit courts of appeals, the filing of three motions for

rehearing did not suspend his right to seek a judicial

remedy. Obviously, the subsequent rehearings could not

* Accord: Chambers v. Omaha Public School District, 536 F.2d

222, 230 (8th Cir. 1976) (exhaustion of administration remedies

under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,

did not toll action under 42 U.S.C, § 1983); Bryant v. Potts, 528

F.2d 621, 622 (5th Cir. 1976) (prison administrative procedures

did not toll statute of limitations under 42 U.S.C, § 1983); Mon-

arch Asphalt Sales Co., Inc. v. Wilshire Oil Company of Texas,

511 F.2d 1073, 1079 (10th Cir. 1975) (motions to alter judgment

and new trial under Rule 59 of the Federal Rules of Civil Proce-

dure did not toll the statute of limitations under § 16b of the

the Clayton Act).

toll the operation of a statutory cause of action since no

further exhaustion was required under this Court’s de-

cisions in Republic Steel Corporation vy, Maddox, supra,

and Vaca y. Sipes, supra,

The fact that requests for rehearing or reconsideration

do not toll the statute of limitations was recognized in

Jolivet vy, Ethins, 886 F.Supp. 261 (D. Md. 1974). In Jolivet,

a former law student sued under 42 U.S.C. § 1983 alleging

that he had been refused readmission because of his race.

In holding that that plaintiff's continual requests for re-

admission and rehearing did not toll the statute of limita-

tions, the Court stated:

“Tf plaintiff could continue the tolling of the three-

year statute of limitations merely by periodically

filing further petitions for readmission, he could ef-

fectively prevent for an indefinite period of time the

application of any limitations period to him. Such a

result would put it in the power of the plaintiff to

enlarge the time set by statute for commencing suit.’’

386 F.Supp. at 271-272.

In the instant case, the Sixth Cireuit’s finding that the

petitions for rehearing toiled the statute of limitations

effectively placed the running of the limitations period in

the hands of the Respondent. The employee can now extend

the statute of limitations by merely filing a request for

rehearing of the arbitration decision. In the subject mat-

ter case, the requests for rehearing extend the limitations

period for over one and one-half vears after final and bind-

ing arbitration, This type of exhaustion is certainly not

required under either Vaca or Maddox and, in any event,

would in no way alter the facet that the plaintiff could have

also pursued any statutory remedy under § 301 after the

arbitration award of September 16, 1969.

Thus, the Sixth Cireuit’s opinion stands in direct con-

tradiction to decisions of this Court and other cireuit

courts of appeals and should he subjected to immediate

review by this Court and subsequent reversal,

B. The Sixth Circuit’s Decision Destroys The Symmetry

Required By Federal Labor Policy.

The Sixth Cireuit’s ruling dismissed the claim for

breach of the duty of fair representation as being time

barred but allowed the Respondent to proceed against the

Petitioners for breach of the collective bargaining agree-

ment. Prior to the July 25, 1978 decision of the Sixth Cir-

cuit, it was well settled that in order to recover against

the employer under § 301 where there exists grievance

machinery culminating in final and binding arbitration, an

employee would first have to establish that the union

breached its duty of fair representation. Barrett vy. Safe-

way Stores, Incorporated, 588 F.2d 1311, 1815 p. 3, 1316

(8th Cir. 1976); Warren vy. International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, 544 F.2d 334, 341 (Sth Cir. 1976); Lewis v. No, 1

Greyhound Lines, East, 411 F.Supp. 368 (D. D.C. 1976),

aff'd, 555 P.2d 1058, 1054-1055 (D.C, Cir. 1977). This rule

was first stated by this Court in Vaca vy. Stipes, supra, when

it stated:

‘Bor these reasons, we think the wrongfully dis-

charged employee may bring an action against his

employer in the face of a defense based upon the

failure to exhaust contractual remedies, provided

the employee can prove that the union as bargaining

agent breached its duty of fair representation in its

handling of the employee’s gricvance.”’ 386 U.S, at

186. (mphasis added).

More recently, in dines vy. Anchor Motor Freight, 424 U.S.

D54 (1976), this Court reaffirmed its holding in Vaca when

it stated:

“To prevail against either the company or the

Union, petitioners must not only show that their

discharge was contrary to the contract but must

also carry the burden of demonstrating breach of

duty by the Union,’? 424 U.S. at 570-571.

Pursuant to the Vaca-Hines doctrine, the circuit courts

of appeals, including the Sixth Cireuit, have consistently

dismissed breach of contract claims under § 301 where the

employee did not state a claim against the union for breach

of the duty of fair representation due to the failure to

plead sufficient facts'’ or due to the failure to exhaust in-

tra-union remedies."

Thus, the law had previously been settled that a viable

claim of a breach of the duty of fair representation was a

prerequisite to a S 301 contract action against the em-

plover. The Sixth Cireuit’s departure from this settled

precedent not only destroys the necessary symmetry be-

tween the claim for breach of contract and the breach of

duty bat also is fundamentally unfair to an employer who

is forced to defend without access to evidence and wit-

nesses, a breneh of duty claim,

If the purpose of the statute of limitations is to pro-

' See, Barrett v. Safeway Steres, Incorporated, 538 F.2d 1311,

1315, f.n. 3, 1316 (8th Cir. 1976); Lewis v. No. 1 Greyhound

Lines East, 411 F.Supp. 368 (D. D.C. 1976), aff'd, 555 F2d 1053,

1054-1055 (D.C. Cir. 1977) ; Warren v. International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-

ica, 544 F.2d 334, 341 (8th Cir. 1976).

"See, Fleming Vv. Chrysler Corporation, 575 F.2d 1187, 1188-1189

(6th Cir. 1978); Willetts v. Ford Motor Company, 99 L.R.R.M.

2399 (6th Cir. 1978) ; Harrison v. Chrysler Corporation, 558 F.2d

1278, 1278-1279 (7th Cir. 1977); contra, Winter v. Local Union

No, 639, 569 F.2d 146, 153 (D.C. Cir. 1977).

mote justice by preventing surprises through the revival

of claims that have been allowed to slumber until evidence

has been lost, memories have been faded and witnesses

have disappeared, Burnett vy. New York Central Railroad

Company, 380 U.S. 424, 428 (1965): Order of Railroad

Telegraphers v. Railway ERaupress Agency, Ine., 821 U.S.

342, 348-349 (1943), it is clear that the claim for breach

of the duty of fair representation should be barred as to

the employer as well as the union. Common sense and

fundamental fairness would indicate that, if the claim

is too ‘*stale’”’ for the union to defend, it is also too ‘‘stale’’

for the employer to properly defend. The fundamental

injustice in requiring an employer to defend a claim to

which he does not have total access to the evidenee and

where collusion between the union and employee is a dis-

tinct possibility, has led several courts to require the

union to be a party defendant. For example, in Atwood vy.

Pacific Maritime Association, 432 F.Supp. 491 (D. Ore.

1977), that court refused to grant the plaintiff’s request

to dismiss the union as a party defendant beeause:

‘Kirst and most important, it is simply unfair

to expect the Employers to litigate and defend the

Union against plaintiff’s claim of unfair represen-

tation. The Union has best access to the appropriate

witnesses and evidence and should defend its own

position. While the Employers certainly have an

interest in this issue and may participate in its trial,

they should not be required to assume sole respon-

sibility—-especially in view of the relative longevity

of this action.’’ 482 F.Supp. at 495.

Again, in Lowther v. Fred W. Albrecht Grocery Company,

97 L.R.R.M. 2278 (M.D. Ohio 1977), that court found that

the Ohio statute of limitations governing breaches of stat-

utory duties was the most applicable limitation period.

The court also held that the same statute of limitations

applied to the emplovee’s claim against the employer for

breach of the collective bargaining agreement, In so do-

ing, that court reasoned:

‘Moreover, such limitations period shall also be

applied to plairtiff’s breach of the collective bar-

gaining agreement claim, Said claim against Al-

brecht is apparently ancillary to that against the

union, It is well settled that a claim by an employee

against an employer for breach of a bargaining

agreement containing a grievance arbitration pro-

cedure cannot be maintained unless the emplovee

has at least attempted to exhaust said procedure,

or that such would he futile. Vaca vy, Sipes, 3886 U.S,

171, 184, 87S, Ct, 908, 914, 64 L.R.R.M. 2369 (1967),

The action against the employer, however, can be

brought in such circumstances only if there is an

actionable claim against the union for breach of its

duty of fair representation, Id, Therefore, if the

action against the union is barred, so is the action

awainst the emplover.’’ 97 L.RROM, at 2280,"

The need for symmetry between the claims for breach

of contract and breach of the duty of fair representation

have led at least two circuits to apply the same limitation

period to the union and the employer, See, Butler vy, Local

Union 828, International Brotherhood of Teamsters, Chauf-

fours, Warehousemen and Helpers of America, 14 F.2d

442, 448 (Sth Cir, 1975), cert, denied, 423 U.S, 934 (1976) and

Abrams vy, Carrier Corporation, 484 F.2d 1234, 1252-1253

12 Accord: Grant Vv. Mulvihill Brothers Motor Service, 428 F.Supp.

45 (N.D. Ill, 1976); Vandever v, Bell Helicopter Company, 98

L.R.R.M, 2235, 2287 (M.D, Tex, 1976); Brooks Vv, Southwestern

Transportation Company, 97 L.R.R.M, 2616 (N.D, Tex, 1978) ;

Glowacki Vv. Motor Wheel Corporation, 67 Mich, App. 448, 462-

468, 241 N.W.2d 240 (1976).

(2d Cir, 1970), cert. denied, 401 U.S. 1009 (1971)." AL

though the lower court initially recognized the need for

symmetry in holding that the three year statute of limita-

tions Was applicable to the contract and breach of duty

claims, the Sixth Cirenit proceeded to destroy this svm-

metry by employing an artificial means of tolling whieh

inaifinitely extends the statute of limitations as to the

claim against the employer, Indeed, a reading of Butler,

Which was the only case cited by the Sixth Cireuit in sup-

port of its holding that the statute of limitations was

tolled, actually supports the position of Petitioners in

this matter.’ In Butler, the plaintiff was discharged on

Mareh 29, 1967 and the grievance was rejected on August

2, 1967, The Bighth Cireuit first held that a five year stat-

ute of limitations governed the claim against the union

and that, since the complaint was filed on June 8, 1972,

the action was timely as to the union,

With regard to the employer, the Mighth Cirenit held

that the eause of action acernued upon the termination of

the grievance proceedings on August 2, 1967 since, at that

point in time, the emplovee had exhausted his contractual

'’ Petitioners do acknowledge that two circuit courts of appeals

have held, albeit without any extensive reasoning or rationale,

that the fact that the claim for breach of duty of fair representa-

tion is barred as to the union does not preclude a recovery

against the employer, See, Sanderson vy, Ford Motor Company,

483 F.2d 102, 114 (5th Cir, 1973) and De Arroyo vy. Sindicato

De Trabajadores Packing House, 425 F.2d 281, 286-287 (1st Cir.

1970), However, Petitioners De ate ge | submit that neither the

First nor Second Circuits considered the compelling policy rea-

sons behind requiring that the plaintiff submit a viable claim

for breach of the duty of fair representation for the employer

to defend,

It must be noted that Butler was decided prior to the decisions

of this Court in Johnson Vv, Railway Express Agency, Ine,, supra,

and Jnternational Union of Electrical, Radio and Machine

Workers Vv, Robbins & Meyers, Inc., supra, wherein this Court

rejected similar tolling arguments,

reiedics, The employer had alleged that the cause of action

accrued at the time of the employee's discharge. The Mighth

Cireuit’s decision indicated that an essential basis for its

holding was the necessity for having both the employer

and the union as parties to the litigation, 514 F.2d 447, 448,

If the court had held that the cause of action aeerued on

Mareh 29, 1967, the xetion would have been barred as to

the employer but not against the union, The Butler court

indicated that such a result would be unwarranted because:

‘Tn instanees where the employer had acted en-

tirely in good faith in its interpretation of the con-

tract, it will be protected if the union has fairly repre-

sented the employee, but it will be vulnerable if the

union has acted unfairly, Because a good faith em-

ployer’s liability is dependent upon the union’s

conduct, there is an inherent unfairness in a rule

which would allow the union to raise the limitations

defense while denying such a defense to the em-

ployer, The Supreme Court in Vaca recognized the

importance of having both defendants before the

Court:

‘* * * [T]t is obvious that the courts will be

compelled to pass upon whether there has been a

breach of the duty of fair representation in the

context of many § 301 breach-of-contract actions.

If a breach of duty by the union and a breach of

contract by the employer is proven, the court must

fashion an appropriate remedy, Presumably, in

at least some cases, the union’s breach of duty will

have enhanced or contributed to the employee's

injury. What possible sense could there be in a

rule which would permit a court that litigated the

fault of the employer and union to fashion a remedy

only with respect to the employer? * * *’’’ 514

F.2d at 448,

The Butler rationale has been totally undermined by the

present decision of the Sixth Cireuit. By its decision, the

Sixth Cireuit allowed the employer to remain a party de-

fendant and further required he employer to defend a claim

which it admitted was too **stale’? for the union to defend.

Moreover, this Court must inquire as to what possible sense

exists ina rule of law whieh would require the court to fash.

ion a remedy as to the employer but not as to the union.

The fundamental error in the Sixth Cireuit’s ruling is

that there was absolutely no legal basis for tolling the

statute of limitations beyond the issuance of the Septem-

ber 16, 1969 arbitration award. A rule of law that tolled

the statute of limitations until the exhaustion of the arbi-

tration provision in the labor contract would certainly

further federal labor poliey, This event occurred, under

the parties’ contract, on September 16, 1969, Thereafter,

any tolling requirement merely disserves federal labor

poliey and plices the running of the statute of limitations

in the eontrol of the employee.

C. The Congressional Policy Favoring Arbitration And

Expeditious Resolution Of Labor Disputes Is Disserved

By The Sixth Circuit's Tolling Requirement.

In Burnett vy. New York Central Railroad Company, 380

PS. 424 (1965), this Court stated;

These authorities indicate that the basie inquiry

is whether congressional purpose is effeetuated by

tolling the statute of limitations in given cireum-

stances,’ B80 US, at 427.

Petitioners submit that tolling the statute of limitations

hevond the rendition of the September 16, 1969 arbitration

award totally disserves the congressional policy and pur-

pose favoring labor arbitration and expeditious resolution

of labor disputes,

First, it is self-evident that the Sixth Circuit’s tolling

requirement, which places the running of the statute of

limitations in the hands of the employee, does not effectu-

ate the congressional purpose of rapid disposition of labor

disputes. To the contrary, the Sixth Circuit’s tolling ex-

emption allows the statute of limitations to be renewed

by the mere filing of a petition for rehearing. When, as

in the instant case, there is no requirement that a petition

for rehearing be filed, it is clear that sueh filing should

not be allowed to delay the final disposition of a labor dis-

pute. Indeed, this Court has previously affirmed the federal

policy favoring rapid disposition of labor disputes. See,

International Union, United Automobile, Acrospace and

Agricultural Implement Workers of America v. Hoosier

Cardinal Corporation, 383 U.S. 696, 707 (1966). This pol-

icy is obviously disserved by the Sixth Cireuit’s ruling in

the instant case. Thus, the ruling of the Sixth Cireuit

should be reversed and supplanted by a rule of law that

allows for a tolling of the statute of limitations until final

and binding arbitration has been completed or when the

grievance has been finally rejected prior to arbitration.

Second, the decision of the Sixth Cireuit totally nullities

the congressional policy favoring the finality of arbitration

awards, If the congressional policy expressed in 29 U.S.C.

§173(d) favoring labor arbitration and this Court’s rulings

in the Steelworkers Trilogy favoring finality of arbitration

awards is to have any meaning, the Sixth Cireuit’s deei-

sion must not be allowed to stand. For under the Sixth

1 See, United Steelworkers of America Vv. Enterprise Wheel Corp.,

363 U.S. 593, 599 (1963); United Steelworkers of America Vv.

American Manufacturing Co., 363 U.S. 564 (1963); United Steel-

workers of America Vv. Warrior & Gulf Navigation Company, 363

U.S. 574, 578-582 (1960).

Cirenit’s decision, an arbitration award will very rarely

every be final. This conclusion is mandated by the fact that

an employee may merely file a petition for rehearing and

continue to litigate the propriety of the grievance through

the contractual procedure until such time as the employee

is ready to institute civil litigation. This practice is ex

pressly condoned by the Sixth Circuit's July 25, 1978 de-

cision.

Thus, although lip service is paid to the principle that

arbitration awards should he final, the Sixth Circuit divised

a rule of law which totally disserves this purpose. The

end result is that arbitration becomes less and less attrae-

tive to employers since they are forced, by contract, to

arbitrate a dispute and are later foreed, by a judicial re-

vision of the express congressional purpose favoring labor

arbitration, to relitigate the same dispute in the courts—

at the time and place chosen by the emplovee. It is more

advantageous to refuse to arbitrate a dispute and, instead,

litigate it in the feceral courts on a single occasion, there-

by gaining the benefit of the judicial doctrine of res judi-

cata,

Although such a course of action would obviously dis-

serve the congressional policy expressed in 29 ULS.C. §

173(a), it assures the employer that he will not have to

litigate the contractual propriety of his actions on more

than a single oecasion.

The Sixth Cirenit’s decision not only conflicts with the

decisions of this Court and other cirenit courts of appeals

but, most importantly, totally disserves the express federal

policy favoring the rapid disposition of labor disputes by

arbitration rather than litigation. It is for this reason that

this Court should grant Petitioners’ request for further

judicial review,

Ill.

THE COURT OF APPEALS ERRED IN HOLDING

THAT RESPONDENT-EMPLOYEE’S AMENDED

COMPLAINT STATED A CLAIM FOR THE BREACH

OF THE DUTY OF FAIR REPRESENTATION.

On July 17, 1974, the Respondent herein filed its Amended

Complaint setting forth three separate counts against the

Petitioners and Union. Count I stated Respondent was

wrongfully discharged in violation of the collective bar-

gaining contract. Count Il alleged breach of the duty of

fair representation against the Union only. Count LI

alleged a conspiracy between the Petitioners and the Union,

The Court of Appeals dismissed Counts [1 and II] held-

ing that they were time-barred because of the statute of

limitations. (10a).' Count I, however, was allowed to stand

16 The Petitioners would make manifest to this Court that Count I

alleges a cause of action based upon wrongful discharge without

any allegation of a breach of the Union’s duty of fair represen-

tation. As Counts II and III have been dismissed, Count I must

set forth a cause of action sufficient in and of itself in order to be

sustainable by this Court. Chappell & Co., Inc. v. Santangelo, 30

F.Supp. 599 (D.C. Conn, 1939); Herman v. Prudence Mutual

Casualty Co., 41 Ill. 2d 468, 472, 244 N.E.2d 809, 811 (1969);

Lambert v. Southern Counties Gas Company of California, 52

Cal. 2d 347, 352, 340 P.2d 608, 611-612 (1959); McGovern Vv.

Kraus, 192 Wis. 558, 563, 213 N.W. 332, 334 (1927). This pro-

vides a clear basis for reversal of the Court of Appeals since

Count I is clearly not sustainable in and of itself. A § 301 action

standing alone and without an allegation that the Union breached

its duty of fair representation is not actionable where the

parties have participated in final and binding arbitration. See,

Hines Vv. Anchor Motor Freight, Inc., 424 U.S. 554, 570-571

(1976).

Thus, the Court of Appeals’ conclusion that: “| Plaintiff! al-

leged that his discharge was violative of the collective bargain-

ing agreement and that the Union’s breach of duty denied him

a fair grievance proceeding” is factually incorrect based upon

the allegations contained in Count I. (1la-12a).

The Petitioners aver, however, that even the allegations con-

tained in dismissed Count II fail to state anything more than

conclusory allegations and thus do not comply with the standard

of pleading required to survive Petitioners’ motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Pro-

cedure.

Ree ume 5

bewred

iS EER OS SOT be eis Ot nee ed 4 St

. al s

en ed ee ee eee

based upon erroneous conclusions as to the statute of limi-

tations, see pp. 18-34, supra.

The Court of Appeals subsequently found that:

“We think that the Appellant’s amended com-

plaint states a colorable § 301 claim for wrongful

discharge under the standard enunciated in Hines.

He alleged that his discharge was violative of the

collective bargaining agreement and that the union’s

breach of duty denied him a fair grievance proceed-

ing. This was sufficient to withstand dismissal for

failure to state a claim upon which relief could be

granted,’’ (1la-12a). (footnotes omitted).

The Petitioners submit that the decision of the Court

of Appeals was incorrect because it is against federal labor

policy; it is also in irreconcilable conflict with the decisions

of other circuit courts of appeals; and, it is based upon

an erroneous reading of the Respondent’s Complaint.

In sustaining Count I, the Court of Appeals seriously

undermined federal labor policy. The Court of Appeals

premised its decision that Count I was sufficient to with-

stand dismissal pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure upon this Court’s decision in

Conley v. Gibson, 855 U.S. 41 (1957). However, Conley is

factually inopposite to the case at bar.

In Conley, the black petitioners brought an action under

the Railway Labor Act, 45 U.S.C. § 151, ef seq., alleging

that the railroad had abolished 45 jobs resulting in dis-

charges and demotions of the 45 black petitioners. The

plaintiffs alleged that, despite their pleas to the union to

represent them, the union did nothing to protect their con-

tractual rights under the parties’ collective bargaining

agreement.

In Conley, no arbitration provision was invoked by the

petitioners nor had an arbitration panel been assembled

to hear their complaints. Thus, the strong labor poliey

favoring final settlement of disputes by methods agreed

upon by and between the parties was not present in Conley,

In 29 U.S.C. § 178(d) Congress set forth its policy favor-

ing final settlement of disputes by methods agreed upon

by the parties:

“(d) Final adjustment by a method agreed upon

by the parties is hereby declared to be a desirable

method for settlement of grievance disputes arising

over the application or interpretation of an existing

collective bargaining agreement.’’

In decisions subsequent to Conley, this Court las con-

sistently cited 29 U.S.C. 9 173(d) with approval. See, Vaca

v. Sipes, 380 U.S. 171, 191 (1967); Hines v. Anchor Motor

Freight, Ine., 424 US, 554, 562 (1976) ; United Steelworkers

of America Vv, American Manufacturing Company, 363 U.S.

564, 566 (1960); Nolde Brothers, Inc. v. Local No, 358,

Bakery and Confectionary Workers Union, AFL-C1O, 4380

US. 243, 254 (1977); Buffalo Forge Company vy. United

Steelworkers of America, APL-C1TO, 428 U.S. 897, 411-412

(1976); Gateway Coal Company vy. United Mine Workers

of America, 414 U.S. 368, 377 (1974).

Thus, this Court’s admonishmnents in Conley that:

eo, fA] the Rules [Federal Rules of Civil Pro-

cedure| require is ‘a short and plain statement of

the claim’ that will give the defendant fair notice of

what the plaintiff’s elaim is and the grounds upon

which it rests.’’ 355 U.S. at 47.

must not be considered in a vacuum but must be viewed

in lieht of the congressional mandate of 29 U.S.C. § 173(d)

as well as this Court’s consistent enforcement of this pol-

icy.

Consistent with complaints alleging violations of the

—_— =i ee

Civil Rights Aets,"* the congressional mandate of 29 U.S.C,

§ 173(d) also requires that federal courts demand more

than mere broad concinsory allegations in examining com-

plaints alleging breach of the duty of fair representation

and wrongful discharge where the ciuiplover’s action lias

been subjected to final and binding arbitration, This poliey

Was succinctly stated in Sedlarie vy. General Motors Cor-

poration, 54 FLRLD. 250) (e.D. Mich. 1971), wherein the

court stated:

“The court is inclined to agree with the position

taken by the defendants that simple averments of

had faith in representing the plaintiff in his griev

ance procedure are inadequate to give the plaintiff

standing to bring suit in this court, and further, this

court agrees that it is incumbent upon the plaintiff

as a condition to his seeking relief in this court to

plead affirmatively that he has either exhausted his

remedies as set forth upon the contract upon which

he relies or to plead facts in avoidance of that ob-

17 Indeed, complaints alleging violations of the Civil Rights Acts

have been carefully scrutinized. The circuit courts of appeals have

consistently required specificity in pleadings and have therefore

dismissed conclusory allegations, notwithstanding Federal Rule

of Civil Procedure 8(a) (2). See, Rotolo v, Borough of Charleroi,

532 F.2d 920, 928 (83d Cir, 1976); Albany Welfare Rights Or-

ganization Day Care Center, Inc. Vv. Schreck, 463 F.2d 620, 622-

623 (2d Cir, 1972), cert. denied, 410 U.S, 944 (1973); Cooper-

smith v. Supreme Court, State of Colorado, 465 F.2d 993, 994

(10th Cir. 1972); Finley v. Rittenhouse, 416 F.2d 1186, 1187

(9th Cir. 1969); Metealf v. Swank, 444 F.2d 1353, 1358 (7th

Cir. 1971); Wilson v. Lincoln Redevelopment Corporation, 488

F.2d 339, 341 (8th Cir. 1973); Hughes v. Ranger Fuel Corpo-

ration, Division of Pittston Corp., 467 F.2d 6, 10 (4th Cir, 1972) ;

Ogletree V. McNamara, 449 F.2d 93, 98 (6th Cir, 1971), Courts

have consistently taken this approach because of the increasingly

large volume of cases brought under the Civil Rights Acts, a sub-

stantial number of which are frivolous. Furthermore, it is an

important national policy to weed out frivolous and insubstantial

cases at an early stage to keep the doors open for legitimate

ones. See, Kauffman v. Moss, 420 F.2d 1270, 1271 n. 15 (3d Cir.

1970).

ligation showing that such procedures would be

futile. (Citations omitted).

The court recognizes the argument of the plain-

tiff that in most cases scanty allegations such as con-

tained in plaintiff’s complaint might be sufficient in

view of the broad discovery powers of the Federal

Rules under ‘notice pleading’ concepts. [It would

seem to the court that in actions of this nature, how-

ever, it is incumbent upon the party sceking relief

to set out with greater specificity those facts which

entitle him to present his case in court. The thrust

of the law im this area seems strongiy to suggest

that its purpose is to provide an orderly and fair

processing of grievances and one which will subject

neither the employer, the employee and the Union

to expensive litigation in court unless and until all

other remedies have reasonably been exhausted.

Thus, the very purpose of the collective bargaining

agreement is to avoid litigation in court by setting

up fair and alternative procedures. A rule of law

or of pleading which allows the party to circumvent

such policy by merely stating conclusions not sup-

ported by the facts to justify them would subvert

the purpose of the contract and of federal law gov-

cerning the relationships, rights, and responsibilities

of the party.’” 54 RD. at 233. (emphasis added),

As this Court stated in Hines v. Anchor Motor Freight,

Tne., 424 U.S. 554 (1976) :

16 205(d), 61 Stat. 154, 29 U.S.C. § 173(d)] ‘ean

he effectuated only if means chosen by the parties

for settlement of their differences under a collective

hargaining agreement is given full play.’ Steel-

workers v. American Manufacturing Company, 363

U.S. 564, 566, 4 L. Hd. 2d 1403, 80S. Ct. 1348 (1960).

Courts are not to usurp those funetions which col-

lective bargaining contracts have properly ‘en-

trusted to the arbitration tribunal’ id., at 569, 4 L, Kd.

2d 1403, 80 8S. Ct. 1343. They should not undertake

to review the merits of arbitration awards but

should defer to the tribunal chosen by the parties

finally to settle their disputes. Otherwise ‘plenary

review by a court of the merits would make meaning-

less the provisions that the arbitrator’s decision is

final, for in reality it would almost never be final.’

Steelworkers vy. Enterprise Corp., 303 U.S. 593, 599,

4 L. Mad. 2d 1424, 80.8. Ct. 1558 (1960).’? 424 ULS. at

0605.

This Court recognized in Hines that frequent judicial

review of labor arbitrations which are subject to grievance

procedures would render such procedures meaningless. In-

deed, if arbitration is to continue as a preferred metcod of

resolving labor disputes, a strict standard for reviewing

the initial allegations of complaints must be adopted by

this Court."”

The cirenuit courts of appeals have consistently receg-

nized that mere conclusions, without supporting factual

allegations, are legally insufficient to withstand s iotion

for dismissal pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure.” Florey vo cfir Line Pilots Asso-

'S This Court has recognized that “arbitration is the substitute for

industrial strife.’ United Steelworkers of America V. Warrior &

Gulf Navigation Company, 363 U.S. 574, 578 (1960). If indus-

trial strife is to be avoided, the finality of arbitration provisions

cannot be viscerated.

™ Indeed, while the Sixth Circuit Court of Appeals distinguished

Balowski v. UAW International Union, AFL-CIO, 372 F.2d 829

(6th Cir. 1967) in that it was a motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56, the court in

Balowski specifically held that: “The allegations of a complaint

alleging the breach of a union’s duty of fair representation must

contain more than ‘conclusory statements alleging discrimina-

tion’.” 372 F.2d at 835.

The Balowski decision has consistently been cited by other cir-

cuits who have dismissed conclusory allegations on the basis

of a motion made pursuant to Federal Rule of Civil Procedure

121b) (6). See, Lusk v. Eastern Products Corporation, 427 F.2d

705, 708 (4th Cir. 1970); Augspurger Vv. Brotherhood of Loco-

motive Engineers, 510 F.2d 85%, 859 (8th Cir. 1975).

ciation, Tuternational, 575 VF 2d 673, 676 (sth Cir, 1978);

aderson Vv. United Trausportation Union, 557 F.2d 165,

169-170 (Sth Cir, 1977); Lewis ve Now 1 Greyhound Lines,

Kast, 411 FSupp. 368 (D. DCL 196, ad, 555 F.2d 1055

CEC. Cir. 1977 ).7

In Slagley ve Ulinois Ceutral Railroad Company, 397

Bivd 546, 552 (7th Cir. 1968), the court held that mere

conclusions, Without supporting factual allegations, were

levally insufficient to withstand a motion for dismissal

pursuant to Federal Rute of Civil Procedure 120b)(6).

Therein, the Seventh Cirenuit: stated:

“The pertinent allegations of the complaint are

that ORC. and B. compelled LC. to deprive appel-

lant of its seniority, that this action was ‘wrongful,

nnlawfal, and unconstitutional’, ‘arbitrary and ea-

pricious’, and ‘constituted wrongful and unlawful

discrimination toward plaintiff’, and that the aetion

breached the collective bargaining agreement and

Violated the Federal and = Indiana Constitutions.

Iie frud lhese allegations suf fictent lo state a claim

for breach of the duty of fair representation. They

are mere conclusions of law, plainly iusufficient

wuder the I derval Rilo s of Cir Procedure”? 397

Yd at 5d.

In Gamey Vv. Brotherhood of Ratheay & Steamship

"Similarly, the circuit courts have consistently granted motions

for summary judgment pursuant to Federal Rule of Civil Pro-

cedure 56 based upon mere conclusory allegations. See, Whitten V.

Anchor Motor Freight, Ine., 521 F.2d 1335, 1341 (6th Cir. 1975);

Balowski v. UAW International Union, AFL-CIO, 372 F.2d 829,

835 (6th Cir. 1967); Hardee vy. Allstate Services, Inc., 537 F.2d

1255, 1259 (4th Cir. 1976); Willetts v. Ford Motor Company,

99 L.R.R.M. 2399 (6th Cir. 1978). Cf., Hubicki v. Ace Industries,

Inc., 484 F.2d 519, 522-528 (3d Cir. 1973) (summary judg-

ment pursuant to Rule 56 or motion to dismiss pursuant to

Rule 12(b) (6) distinction immaterial—conclusory allegations in-

sufficient).

Clerks, 315 kid SIS (Sd Cir. 1963), the court affirmed a

motion to distuiss. In so doing, the Court opined:

“Tn order to come within its ambit [doetrine of

fair representation], the complaint before us must

have more than conclusory statements alleging dis-

crimination. In particular plaintiffs must make a

showing that the action or inaction of the statutory

representative complained of was motivated by bad

faith, for the gravamen of the rule is ‘hostile dis-

crimination.’ 315 2d at 823.

The Fourth Cirenit in Lash ve Kastern Products Corpo-

ration, 427 F.2d 705 (1970) afiirieed the dismissal of plain-

tiffs’ complaint because it contained mere conclusory alle-

gations. Therein, the plaintiffs alleged that the union ‘*re-

fused to and continue to refuse’ to present grievances for

them to the company. The Court wrote:

“o. The allegations as complained alleging a

breach of a union’s duty of fair representation must

contain more than conclusory statements alleging

uproper representation; conclusory allegations

Without specifying supporting facets to show the

union’s lack of good faith failed to state a claim.

(Citations omitted). Here plaintiffs complained of

an illegal combination between union and company

in language whieh was purely conclusory, with no

specific factual allegations to support the charges.

Since such allegations are insufficient to state a

claim of improper representation by the union or col-

lusion between union and company, the lower court

could have properly dismissed plaintiff's complaint

for failure to state a claim.’? 427 F.2d at 708.

The Kighth Cireuit reached a similar result in cfiagspur-

wer X. Brotherhood of Locomotive BRugineers, 10 F.2d

853 (1975) where the Court stated as follows:

* Allegetions that the union acted ‘in an un-

fair, invidious, unequal and arbitrary manner’ toward

the plaintiff are mere conclusions of law, plainly

insufficient under Federal Rules of Civil Proeedure,”?

510 F.2d at 859,

The application of the proper standard of pleading as

required by the other circuit courts of appeals together

with the proper legal standard required to establish a

breach of the duty of fair representation, manifests that

the allegations contained in’ Respondent’s Count LE are

merely conclusory and fail to affirmatively set) forth a

cognizable claim,

It is well settled that a breach of the duty of fair repre-

sentation occurs only when a union’s conduct toward a

member of the collective bargaining unit is arbitrary, dis-

criminatory or in bad faith. See, Vaea vo Sipes, 386 U.S.

171, 190 (1967); Balowshi ve. UAW Tuternational Union,

AFL-CTO, 372 F.2d 829, 884 (6th Cir, 1967); Trail v. Inter-

national Brotherhood of Teamsters, Chauffeurs and Ware-

housemen of America, 542 bd 961 (6th Cir, 1976); Dall

v. Greyhound, 435 F.2d 231 (6th Cir, 1970), A claim for

the breach of the duty of fain representation is measured

by the standards of whether there is fraud, deceit, dis-

honest conduct or diserimination that is intentional, severe

and unrelated to legitimate union activities. See, Amal-

gamated Association of Street, Klectric, Railway and Motor

Coach Employees of America vy. Lockridge, 4038 USS, 274

(1971); Woods vo North American Rockwell Corporation,

480 F.2d 644, G48 (10th Cir, 1973). Reid vo Juternational

Union, United Automobile, Aerospace and Agricultural

Implement Workers of America, 479 Pid 517, 520 (10th

Cir, 1973).

Paragraph eight of Count TE of the Amended Complaint

—

sets forth innocuous facts trom which the Court is. ex-

peeted to infer bad faith, (8la-s2a), This clearly does not

meet the standard of pleading required, See, Lewis v. No, 1

Greyhound Lines, Bast, 411 F.Supp. 368, 870° (D. D.C,

1976), aff'd, 555 F.2d 1058 (D.C. Cir, 1977),

Paragraph nine of Count Ll is totally devoid of any

factual allegations upon which a breach of the Union’s

duty of fair representation can be inferred, It is specula-

tive at best. \s was stated in /lardee y, Allstate Services,

lne., O87 bed 1255, 1260 (4th Cir, 1976): “Tt is axiomatie

that mere speculation cannot support a finding of malice,.’’

Paragraph ten of Count TL alleges that the Union did

not call a witness on behalf of the Respondent, However,

it has consistently been held that the failure of a union

to call a witness does not, in and of itself, constitute a

breach of the duty of fair representation, See, Wilson vy.

Washington Post, 98 LRLRM, 2800 (D. D.C. 1976); Siskey

v. General Teamsters, Chauffeurs, Warehousemen and

Helpers, Local No, 261, 419 F.Supp. 48, 58 (W.D. Pa.

1976), As has been stated in /ardee vy, Allstate Services,

Tne., 5387 F.2d 1255 (4th Cir. 1976) :

‘Hardee asserts a general lack of preparation

and effort by his union-appointed representative at

the arbitration hearing. Specifically, Hardee sug-

gests that his representative should have interviewed

Ray and the Allied Dispatchers, Snelgrove and

James. In addition, Hardee challenges the failure to

“all Ray at the hearing and the failure to cross-ex-

amine Snelgrove when the latter’s testimony at the

hearing allegedly diverged from a pre-hearing state-

ment,

Such alleged defaults alone are not of sufficient

magnitude to justify inquiry into the merits of an

arbitral award, and there is no evidence that) they

influence the award’? 5387 F.2d at 125s,

As was stated in Mord Motor Company vo Huffman, S40

US. 3830 (1953):

"A wide range of veasonableness must be allowed

astatutory bargaining representative in serving the

unit it represents, subjeet always to complete good

faith and honesty in the exereise of its diseretion,”’

B45 US. at 33s,

The Court of Appeals’ decision, in holding that Count

HT of the Amended Complaint, stated a cognizable claim

for a breach of the duty of fair representation, was er

ronenos since it contliets with the federal labor poliey

embodied in 29 ULS.CL © 173(d), favoring arbitration as

the preferred means of resolving labor disputes; moreover,

it is in irreconcilable conflict with the decisions of various

cirenit courts of appeals that have held that faets, rather

than conclusory allegations, must be pled in order to state

aclaim fora breach of the duty of fair representation; and,

finally, it improperly interprets Count T of the Amended

Complaint as stating, in and of itself, a cognizable claim

under © 301 for wrongful discharge,

I’ the burden on employees is to remain a substantial

one, Hines vo ctnehor Motor Freight, Ine., 424 U.S. 554,

570 (1976), the Sixth Cirenit’s decision must be reviewed

since it holds that the pleading of mere conclusions, rather

than facts, are sufficient to relitigate the validity of a dis-

charge which has already been upheld by an arbitration

panel pursuant to the labor contract.

CONCLUSION

Mundamental to national labor poliey is this Court’s

and congressional mandates favoring the expeditious and

final resolution of labor disputes by methods agreed upon

between employers and unions who have been selected as

th exclusive representative of eniployees. The Sixth Cir-

cult’s opinion in this matter frustrates national labor policy

and constitutes an improvident decision based upon prior

precedents of this Court and the other cireuit courts of

appeals, The decision of the Sixth Circuit falls short of

meeting either federal labor poliey or the rationale of prior

precedents.

This petition presents this Court with the opportunity

to establish fundamental and clear cuidelines relative to

actions brought pursuant to S301 of the National Labor

Relations Act. The Petitioners herein respectfully submit

that the frustration of national labor policy inherent in

the Sixth Cireuit’s decision mandates that this Court grant

Petitioners’ request for a writ of certiorari to the Sixth

Cireuit. Respectfully submitted,

RILEY AND ROUMELL

/s/ GEORGE 'T. ROUMELL, JR.

/s/ CRAIG W. LANGE

Attorneys for Petitioners

Ellis Trucking Company, Ine.

and

Navajo-Ellis Trucking Co., Ine.

720 Ford Building

Detroit, Michigan 48226

Dated: Nov. 18,1978. Telephone: (313) 962-8255

APPENDIX

APPENDIX INDEX

Page

Memorandum Opinion of the United States District

Court, entered February 18, 1976 00000000002... ove la

Order of the United States Distriet Court, entered

NR EN as 18s ccceceseranovecesviesétscrdensvossereres val

Opinion of the United States Court of Appeals for the

Sixth Cireuit, entered July 25, 1978 00000000. | Sit

Order of the United States Court of Appeals for the

Sixth Cirenit, entered August 16, 1978 2000. l4a

Complaint, filed October 16, 1973 eaten cease teoccc.’ MON

Motion to Dismiss Plaintiff’s Complaint, filed Mareh

St Sen digctondbevacseeute} . 19a

Central States Area Local Cartage Supplemental

Agreement, excerpts of lexhibit C filed with Motion

oe cocvpniveessenes A: Sat ene 2la

Amended Complaint, filed June 18, 1974... seis ecdascce eam

Motion to Dismiss Amended Complaint, filed July 3,

4 SS ce vababuacee sacveveneacieae

Memorandum Opinion la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IARL L. SMART,

v. Plaintiff,

KLLIS TRUCKING COMPANY, INC.,

an Indiana corporation; NAVAJO-ELLIS ;

TRUCKING CO., INC., a New Mexico ee

; eH Civil Action

corporation; jointly and severally, and No. 74.70514

LOCAL UNION NO, 299, Affiliated with ““° ‘*

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers

of America,

Defendants.

MEMORANDUM OPINION

The court has before it Defendants’ motions to dismiss

Plaintiff’s amended complaint pursuant to Rule 12(b)(1)

and (6), Fed. R. Civ. P. Plaintiff bases this court’s juris-

diction on 29 U.S.C. § 185.

Plaintiff, MARL L. SMART, a member of Defendant

LOCAL UNION NO. 299 (hereinafter the ‘‘UNION’’),

was discharged from his employment with Defendants

KLLIS TRUCKING CO., INC. and NAVAJO-ELLIS

TRUCKING CO., INC. (hereinafter ‘‘M@LLIS’’), for al-

legedly failing to follow some instructions given to him

while performing his duties at a Kroger Supermarket.

Plaintiff claims that his instructions to perform certain

work would have been dangerous and contrary to safety

standards. A letter from ELLIS informing Plaintiff of

his discharge was dated September 15, 1969. Grievances

2a Memorandum Opinion

were filed pursuant to the collective bargaining agreement

and the matter went to arbitration where it was resolved

agalist the Plaintiff? on both the initial hearing and wpon

rehearing, In addition, Plaintiff’s complaint before the

National Labor Relations Board (NLRB) was investigated

and found not to be supported by sufficient evidence.

On Octber 16, 1973, the Plaintiff filed a complaint against

MLLIS alleging that lis termination was in derogation of

the collective bargaining agreement because it was without

just causes and without an initial warning letter, required

unless the discharge is for dishonesty, drunkenness, reck-

lessness, or carrying unauthorized passengers while on the

job. ELLIS moved to dismiss this complaint but, before

the motion could be brought for hearing, the Plaintiff, pur-

suant to Rule 15(a), Med. R. Civ. P., filed an amended

complaint. The amended complaint was in three counts and

added the UNTON as a party Defendant.

Count one is against ELLIS and was based upon Plain-

tiff’s failure to reecive the warnine letter before his dis-

charge, Count two is against the UNION and alleges a

breach of the UNION’s duty of fair representation. Plain-

tiff charges that the UNION was guilty of collusion with

the employer, HLLIS, in handling his grievance by tie

UNION’s refusal to call a witness that Plaintiff had sug-

gested. Count three alleges that the UNION and ELLIS

conspired in the handling of the grievance for the purpose

of discharging the Plaintiff. This allegation is also based

upon the failure of the UNION to utilize the testimony of

Plaintiff’s suggested witness and for failure of the UNION

to bring out the facts surrounding the incident leading to

his discharge. Acts in furtherance of the alleged cons piracy

include allegations that ELLIS wrongfully, and unsuceess-

Memorandum Opinion 3a

fully, disputed Plaintiff’s claims for unemployment benefits

and that the UNION failed to present enough facts to sup-

port Plaintiff’s unsuccessful claim before the NLRB.

Both the UNION and ELLIS brought motions to dismiss

Plaintiff’s amended complaint. Plaintiff filed a response

to the motions and ELLIS filed a reply to that response.

On August 12, 1974, the motions were heard and taken

under advisement. On August 22, 1974, before a decision

on the motions and without formally obtaining the leave

of this court or written consent of the Defendants, as re-

quired by Rule 15(a), Fed. R. Civ. P., the Plaintiff filed

a second amended complaint. Thus, if the amended com-

plaint were dismissed, Plaintiff would not be allowed, as a

matter of right, to submit his second amended complaint.

J. Moore, Moore’s Federal Practice J 15.07[(2], at 853-55

(2d ed. 1974). The merits of Plaintiff’s second amended

complaint, however, need not be addressed because the

grounds upon which the amended complaint will be dis-

missed would apply to the second amended complaint.

Defendant ELLIS, as to each count of the complaint,

argues that the applicable statute of limitations has run.

As to count one, this argument is based on the contention

that Plaintiff, in fact, seeks to set aside an arbitration

award and that the statute of limitations applicable to a

claim for such relief is either three months under the

United States Arbitration Act, 9 U.S.C. § 12, or twenty

days under Michigan General Court Rule 769 dealing with

arbitrations. ELLIS argues that, whichever limitations

period applies, the period to bring suit has run because

the arbitration award was given on January 20, 1971, and

the complaint was not filed until October 16, 1973. As to

count two, ELLIS and the UNION contend that claims of

4a Memorandum Opinion

unfair representation are governed by Michigan's three

year statute of limitations applicable to personal injuries.

See M.C.L.A. § 600.5805(7). The same statute of limita-

tions, it is argued, applies to bar the conspiracy alleged in

count three as well. In addition to its statute of limitations

arguments, ELLIS also contends that count one must fail

because, as a matter of law, the arbitrator’s decision is

entitled to binding weight. Further, it is alleged that counts

two and three fail to state a claim for relief. The UNION

addresses itself to counts two and three, making the same

statute of limitations arguments as are raised by ELLIS.

It is unnecessary to consider the statute of limitations

to dismiss count one of Plaintiff’s complaint because this

court, as a matter of law, is barred from entertaining it.

The question of a possible breach of the employment con-

tetet was resolved by the arbitrator against the Plaintiff.

The collective bargaining agreement provided for a griev-

ance process culminating in arbitration. That process has

been followed in this case and, under these cireumstances,

the arbitrator’s decision is binding. See Humphrey v.

Moore, 375 U.S. 335, 350-51 (1964). ‘*‘The refusal of courts

to review the merits of an arbitration award is the proper

approach to arbitration under collective bargaining agree-

ments.’? United Steelworkers of Am. v. Enterprise Wheel

d Car Corp., 363 USS. 593, 596 (1960). In United Steel-

workers, the Supreme Court held that a district court

should not attempt to interpret the collective bargaining

contract on a matter that has already been decided by an

arbitrator. The rationale for this decision stems from the

fact that it was the arbitrator’s, not the court’s, construe-

tion of the contract that was bargained for between the

parties. Id, at 599. The eases cited by Plaintiff, in which

Memorandum Opinion ma

the right to bring an action for violation of a collective

bargaining agreement is recognized, are distinguishable on

the grounds that they recognize the right ‘‘is not an un-

limited one’’, and that the grievance had not proceeded to

arbitration. See, e.g., Broniman vy. Great Atlantic & Pacific

Tea Co., 353 F.2d 559, 561 (6th Cir. 1965). In the case now

before the court, the Plaintiff’s grievance was twice con-

sidered in arbitration. On these grounds, therefore, the

Plaintiff’s first count against Defendant ELLIS mnst be

dismissed,

Plaintiff’s second count alleges a breach of the UNION’s

duty of fair representation. The authorities are divided

on the question whether an action for unfair representation

is an action in tort or an action for breach of contract for

purposes of applying the appropriate statute of limitations.

Compare De Arroyo v. Sindicato De Trabajadores Packing-

house, 425 F.2d 281 (1st Cir. 1970); FPalsetti v. Local 2026,

United Mine Workers of Am., 355 F.2d 658 (3d Cir, 1966),

with TUMA yv. Am. Can Co., 367 F. Supp. 1178 (D. N.J.

1973). It appears that the better approach, and the ap-

proach adopted in Priest v. Wolverine Express, Inc., 87

L.R.R.M. 2774 (W.D. Mich. 1974), is to consider a claim

of unfair representation by a union as tortious in nature

and apply the three vear statute of limitations contained in

M.C.L.A. § 600.5805(7). See also Williams v Dana Corp.,

54 F.R.D. 473 (K.D. Mich. 1971). In Williams, Judge Thorn-

ton faced a situation in which the plaintiff, a union member,

attempted to add the union to his complaint in order to

assert a claim against it based on failure to fairly represent

him. In denying the motion, Judge Thornton noted that:

the period for commencing this action against the

Union (the Michigan three-year statute of limitations

6a Memorandum Opinion

being applicable) terminated by the end of 1970 at

the very latest. The United States Supreme Court

has said that in the absence of a federal statute of

limitations in this kind of ease the state statute

should be applied

54 F.R.D. at 474, citing Int’l Union, UAW vy. Hoosier Car

dinal Corp., 383 U.S. 696, 704-05 (1966). In the case now be-

fore the court, Plaintiff’s case was finally decided on April

14, 1971 when the arbitration panel denied his rehearing.

Any claim he may have been able to assert in this court

against the UNION for a failure to fairly represent him

in arbitration had run in April, 1974, Plaintiff’s amended

complaint, which involved the UNION in the lawsuit for

the first time, was filed on June 17, 1974, more than three

vears from the arbitrators’ final decision. Further, the

amendments to Plaintiff’s complaint do not relate back

to the original complaint filed in this action which involved

only the Defendant MLLIS. Addressing this point in Wil-

liams, Judge Thornton noted that ‘‘the claim against the

defendant Union is a separate independent cause of action

from that against [the company], althongh the factual

hackground is similar with respect to [the company] and

the Union’, 54 FLR.D. at 474; sce also Fed. R. Civ. P.

15(¢)(2); J. Moore, supra, § 15.15[4.001], at 1041-48. Thus,

Plaintiff’s second count against the UNION is barred by

the three vear limitation period for tortious actions con-

tained in M.C.L.A. § 600,5805(7).

Finally, in count three, Plaintiff has alleged a conspir-

vey against both the UNTON and KLLIS. This count must

also be dismissed for reasons similar to those stated in

the diseussion of count two, Michigan characterizes claims

of conspiracy to deprive a plaintiff of rights under a col-

Memorandum Opinion Ta

lective bargaining contract as tortious in nature. Field v.

Local 652, UAW AFL-CIO, 6 Mich. App. 140, 147 & n. 3;

see also Kennedy v. Local 38, CIO, 3 Mich. App. 700, 705-06

(1966). Therefore, the same three year statute of limita-

tions applicable to count two would also apply to count

three. See M.C.L.A. § 600.5805(7). Therefore, Plaintiff's

conspiracy count must also be dismissed.

For the foregoing reasons, the court is of the opinion

that Defendants’ motions to dismiss Plaintiff’s complaint

are meritorious and should, therefore, be granted,

/s/ LAWRENCE GUBOW

U.S. District Judge

Dated: Feburary 13, 1976.

Order of February 13, 1976

(Title of Court and Cause)

ORDER

At a session of said court held at Detroit, Michigan, this

13th day of February, 1976.

PRESENT: Hon. Lawrence Gubow, U.S. Distriet Judge.

For the reasons stated in the memorandum opinion is-

sued in this eause on this date,

IT 1S ORDERED that the motions by Defendants to dis-

miss Plaintiff’s complaint should be, and hereby are,

GRANTED.

/s/ LAWRENCE GUBOW

U.S. District Judge

8a July 25, 1978 Sixth Circuit Option

No. 76-2439

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Karl L. Smart,

Plaintiff-A ppellant,

Kilis Trucking Company, Ince., an

Indiana Corporation, Navajo- Appeal from the

Klis Trucking Co., Inc., a New United States District

Mexico Corporation, jointly and Court for the Eastern

severally, and Local Union No, Distriet of Michigan,

299, affiliated with International Southern Division.

Brotherhood of Teamsters,

Chauffeurs, Warehousemen and

Helpers of America,

Defendants-A ppellecs,

Decided and Filed July 25, 1978...

Before; Celebrezze, Engel and Merritt, Cireuit Judges.

Celebrezze, Circuit Judge. Appellee Ellis Trucking Com-

pany dismissed Appellant on September 15, 1969, Appellant

contended that his discharge was wrongful, and sought arbi-

tral relief as provided in the collective bargaining agreement

between Ellis and his union, Local 299 of the International

Brotherhood of Teamsters, The matter was referred to the

Joint State Cartage Committee, which upheld the discharge

on September 16, 1969, and again on January 20, 1971, after

a rehearing.

On October 16, 1973, Appellant filed a complaint against

Ellis in the Eastern District of Michigan, alleging that his

discharge was violative of the collective bargaining agree-

ment. An amended complaint filed on June 17, 1974, added

a second count against Local 299 alleging breach of duty

one

—S

———

ee oo

July 25, 1978 Siath Circuit Opinion Ya

of fair representation and a third count stating that Ellis

and the union had conspired to have Appellant discharged.

Upon motion by the Appellees, the District Court dis-

missed the amended complaint for failure to state a claim

upon which relief could he granted, 409 F. Supp. 129 (1.D.

Mich. 1976). As to the wrongful discharge allegation in

count I, the court found the arbitral decision upholding the

discharge to be binding and unreviewable. 409 F, Supp. at

131. The fair representation and conspiracy claims in counts

Il and TIT were held barred by Michigan’s three-year sta-

tute of limitations applicable to tort actions. /d. at 132. In

this appeal, Appellant maintains that none of the counts

should have heen dismissed.

We deal first with the holding below that counts TT and

IIT were time-barred, The Distriet Court properly read the

complaint as alleging jurisdiction under § 301 of the Labor

Management Relations Act (LMRA or the Act), 28 U.S.C.

§ 185, which provides federal jurisdiction for suits by indi-

vidual employees alleging wrongful discharge under a col-

lective bargaining agreement and for ineluded claims of

union breach of fair representation duty. See Hines v.

Anchor Motor Freight, 424 U.S. 554, 562 (1976); Vaca v.

Sipes, 886 U.S, 1971, 186-87 (1967).

The timeliness of actions under § 301 is determined by

reference to the appropriate state statute of limitations.

UAW vy. Hoosier Cardinal Corp., 383 U.S. 696, 704-05

(1966). Here, we look to the law of Michigan, which is both

the forum state and the state in which the operative events

occurred, See id. at 705 n. 8. Michigan courts apply a three-

year limitation period to actions for breach of the duty of

fair representation brought in conjunction with wrongful

discharge claims. Glowacki vy. Motor Wheel Corp., 241 N.W.

10a July 25, 1978 Sixth Circuit Or’ ston

2d 240, 246-48 (Mich. App. 1976); Washington v. Chrysler

Corp., 242 N.W. 2d 781, 782 (Mich. App. 1976).* The same

limitation period is applied to related claims of conspiracy

between an employer and a union. Glowacki v. Motor Wheel

Corp., 241 N.W. 2d 240, 245-48 (Mich, App. 1976). See also

Field v. Local 652, UAW, 148 N.W. 2a 552 (Mich. App.

1967).

In this case, the breach of fair representation duty (count

Il) and conspiracy (count III) claims were first filed on

June 17, 1974, over three vears after final rejection of Ap-

pellant’s wrongful discharge claim by the arbitration com-

mittee on January 20, 1971. Those counts, standing alone,

are therefore time-barred. We are faced with the further

question, however, of whether counts IT and III might re-

late back to the date of the original complaint for statute

of limitations purposes. Such relation back of amendments

to a complaint is permitted in some eases under Federal

Rule of Civil Procedure 15(¢), Upon consideration, we con-

elude that the amendments in this case cannot relate back

for limitation purposes. Counts IT and IIT involve addition

of a defendant (the union) to the original suit against the

employer. This Court has previously ruled in a similar ease

that amendments which add a party to the original suit can-

not relate back for limitation purposes. Marlow vy. Fisher

Body, 489 F.2d 1057, 1064-65 (6th Cir, 1973), Accordingly,

1The Michigan courts reach this result by characterizing the action

as one for injury to person or property, governed by the three-year

period in M.C.L.A. § 600.5805 (7). Although characterization of the

action for the purpose of selecting the appropriate state limitations

provision is “ultimately a question of federal law,” the state court

characterization should not be rejected unless it is “unreasonable

or otherwise inconsistent with national labor policy.” UAW v.

Hoosier Cardinal Corp., 383 U.S. 696, 706 (1966). We see nothing

in the Michigan characterization that is either unreasonable or in-

consistent with national labor policy and adopt it here.

July 25,1978 Sixth Circuit Opinion lla

it Was proper for the District Court to dismiss those counts

as being time-barred.

Dismissal of Count I presents more serious problems.

The District Court felt bound by the arbitral decision re-

jecting Appellant's wrongful discharge claim because “it

was the arbitrator’s, not the court’s, construction of the

contract that was bargained for between the parties.’’ 409

Ff. Supp. at 131, citing United Steelworkers of America v.

Enterprise Corp., 363 U.S. 593, 599 (1960). Under the eol-

lective bargaining agreement between Ellis and the union,

a decision by the Joint State Cartage Committee is ‘final

and binding’’ on the parties.

Such a ‘finality’? provision is entitled to great deference

by courts in light of Congressional poliey favoring final

adjustment of labor disputes through agreed upon griev-

anee procedures. See Humphrey v. Moore, 375 U.S, 335, 351

(1964); Steelworkers v. American Mfg. Co., 363 U.S. 564,

566 (1960) ; Steelworkers vy. Enterprise Corp., 363 US. 593,

999 (1960). The Supreme Court has recognized an exeep-

tion to this general rule, however, where the union has

breached its duty of fair representation. Shortly after the

District Court’s decision in this ease, the Supreme Court

held in Hines v. Anchor Motor Freight, 424 U.S. 554 (1976),

that an employee denied reinstatement by an arbitration

committee could still obtain judicial review of his wrongful

discharge claim under § 301 of the LMRA if he could show

that the arbitral process had been seriously undermined by

the union's failure to fairly represent him. Under such eir-

cumstances a union’s breach of duty ‘‘removes the bar of

the finality provisions of the contract.’’ 7d. at 567.

We think that Appellant’s amended complaint stated a

colorable $301 claim for wrongful discharge under the

l2a July 25, 1978 Siath Circuit Opinion

standard enunciated in Himes? He alleged that his dis-

charge was violative of the collective bargaining agreement

and that the union’s breach of duty denied him a fair

grievance proceeding. This was sufficient to withstand dis-

missal for failure to state a claim upon which relief could

be granted.” Cf, Desrosicrs v. American Cyanamid Co., 377

K'.2d 864, 870-71 (2d Cir. 1967). The fact that the arbitra-

tion committee had already decided against Appellant did

not bar his federal action at the outset, since he properly

alleged breach of the union’s duty of fair representation.

Hines, 424 U.S. at 567. Nor does it matter that the fair

representation claim is barred by the statute of limitations.

If Appellant’s representation by the union has in fact been

fundamentally unfair, then the arbitral proeeeding is a nul-

lity, and he is free to pursue his § 301 claim against the

employer. See id. at 567-69.

Klis argued below that the wrongful discharge claim

was time barred. The argument was based on the econten-

tion that Appellant is actually seeking to set aside an

arbitration award, and that the statute of limitations ap-

plicable to a claim for such relief is either three months

under the United States Arbitration Act, 9 U.S.C. § 12, or

“Incredibly, counsel for the Appellant failed to even cite Hines in

his brief to this court filed over nine months after Hines was de-

cided, See ABA Code of Professional Responsibility Canon 6 &

DR 6-101(A) (2).

’We have previously ruled that mere conclusory allegations of unfair

representation are insufficient to withstand a properly supported

motion for summary judgment. Balowski v. UAW, 872 F.2d 829

835 (6th Cir, 1967). See also Hines v. Local Union No. $77, 506

F.2d 1153, 1157 (6th Cir, 1974), rev'd in part on other grounds,

Hines v. Anchor Motor Freight, 424 U.S. 554 (1976). Here, how-

ever, we review the sufficiency of a complaint on a motion to dis-

miss under Federal Rule of Civil Procedure 12(b) (6), and must

apply a liberal construction of the complaint in favor of the party

opposing the motion. See Conley v. Gibson, 355 U.S. 41, 45-46

(1957); Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d

1176, 1182 (6th Cir. 1975).

. 2 "I

Pm .

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July 25,1978 Sixth Circuit Opinion 13a

twenty days under Michigan General Court Rule 769 deal-

ing with arbitrations. 409 F. Supp. at 131. The District

Court found it unnecessary to reach the issue, but Ellis

presses it again before this Court. The simplest answer to

Klis’ argument is that Appellant’s action for wrongful

discharge is not in the nature of a motion to vacate or

modify an arbitration award, at least to the extent that it

states a claim under § 301.4 Although the effect of a judg-

ment for Appellant would be to nullify the arbitral de-

cision, the § 301 action is ‘‘independent’’ of the grievance

process. Sec Hines y. Anchor Motor Freight, 424 U.S. at

554. Indeed, such a claim can be brought even before an

arbitral decision, where a union refuses in bad faith to

process a grievance. Vaca vy. Sipes, 386 U.S. 171, 186 (1967).

The fact that the Plaintiff must show a flaw in the griev-

ance process as a prerequisite to recovery does not alter

the basic focus of the § 301 elaim on the propriety of the

discharge itself. Since Michigan applies a three year limita-

tion period to wrongful discharge claims such as the one

here raised (see Glowachi, supra), the action was not time-

barred.®

The judgment of the District Court dismissing Count I

of the amended complaint is reversed, and the ease is re-

manded for further proceedings consistent with this opin-

4Contra, Hill vy. Aro Corp., 275 F. Supp. 482, 487 (N.D. Ohio 1967).

‘Although more than three years elapsed between Appellant’s dis-

charge and the filing of his complaint, we think it only fair that the

statute of limitations be tolied from the time the grievance was

filed until it was finally rejected. (i.e., when the arbitration award

was upheld on rehearing). Federal labor policy generally requires

that a § 301 plaintiff seek arbitral relief as a prerequisite to his

federal claim. Vaca v. Sipes, 386 U.S, 171, 185 (1967). Litigants

should not be penalized for complying with that policy. Cf. Butler

v. Local Union 823, 514 F.2d 442, 450 (8th Cir.), cert. den., 423

U.S. 924 (1975).

I4a July 25,1978 Sixth Circuit Opinion

ion.” The judgment of the District Court dismissing Counts

IT and ITI is affirmed.

(Title of Court and Cause)

Decided and Filed August 16, 1978.

Before: CELEBREZZE, ENGEL AND MERRITT, Cir-

cuit Judges,

Appellees having filed a petition for rehearing with this

Court, and this Court having considered said petition and

being duly advised in the premises,

It is ORDERED that the petition for rehearing be, and

it is hereby denied.

KNTERED BY ORDER OF

THE COURT

/s/ John P. Hehman, Clerk

/s/ Grace Keller, Chief Deputy

_—

*If on remand the trial court determines that plaintiff is entitled

to reinstatement, it will be faied with the further question of the

extent to which the employer’s liability for any backpay may be

limited, should it appear that the employer justifiably relied upon

the finality of the arbitration decision upholding the discharge and

had no part in undermining the process of arbitration. See generally

Hines, supra, 424 U.S, at 572-73 (Stewart, J., concurring) ; Ruzicka

Vv. General Motors Corp., 523 F.2d 306, 212 (6th Cir. 1975).

Complaint loa

UNITED STATES DISTRICT COURT

FOR THE

KASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WARL L. SMART,

Plaintiff

-VS-

HELLIS TRUCKING CoO., INC., Lawrence Gubow

an Indiana Corporation, and Civil Action

NAVAJO-ELLIS TRUCKING No. 4-70514

CO., INC., a New Mexico

Corporation,

jointly and severally,

Defendants

COMPLAINT

NOW COMES Ear! Smart, Plaintiff, by his Attorney,

GEORGE BASHARA, SR., and for his Complaint in this

cause respectfully shows unto this Honorable Court as

follows:

1. That Plaintiff is a citizen of the State of Michigan,

and Defendant Ellis Trucking Co., Ine. is a corporation

incorporated under the laws of the State of Indiana and

is authorized to do business in the State of Michigan.

Plaintiff is informed and believes that Defendant Navajo-

Ellis Trucking Co., Inc. is incorporated under the laws of

the State of New Mexico and is authorized to do business

in the State of Michigan.

9, That the matter in controversy exceeds, exclusive of

interest and costs, the sum of Ten Thousand Dollars ($10,-

000.00).

16a Complaint

3. Plaintiff is informed and believes and verily charges

the truth to be that Defendant Ellis Trucking Company,

merged with Navajo Freight Lines, Inc. forming Navajo-

Kllis Trucking Company and/or sold its franchise and

business to Navajo-Hllis Trucking Co., which assumed all

of Ellis Trucking Company's debts and obligations of every

kind and nature which would inelude Plaintiff's claim here-

in and including its obligations under the contract with

Local 299 of the Teamsters Union hereinafter set forth,

4. That on or about September 15, 1969 Plaintiff was

in the employment of the Defendant, Ellis Trueking Co.,

Inc. arising under a written contract of employment, be-

tween the Defendant and Local Union No, 299 affiliate of

International Brotherhood of ‘Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Article 44 of the

Central States area Local Cartage Supplemental Agree-

ment to the aforementioned contract, reads in part as fol-

lows:

“The Employer shall not discharge nor suspend

any employee without just cause, but in respect to

discharge or suspension shall give at least one warn.

ing notice of the complaint against such employee to

the employee, in writing, and a copy of the same to

the Local Union and job steward affeeted, except that

ho warning notice need be given to any employee

hefore he is discharged if the cause of such discharge

is dishonesty or drunkenness, or recklessness result-

ing in serious accident while on duty, or the carrying

of unauthorized passengers while on the job, The

warning notice as herein provided shall not remain

in effect for a period of more than nine (9) months

from the date of said warning notice, ,. .’’

Complaint l7a

d. Contrary to the contract of employment as afore-

said, the Defendants on September 15, 1969, discharged

the Plaintiff without just cause.

6. Also contrary to the contract of employment as afore-

said, the Defendants failed to give at least one warning

notice of the complaint against the Plaintiff to the Plain-

tiff in writing, as required by the employment contract.

The cause of such discharge was not ‘dishonesty or

drunkenness or recklessness, nor the carrying of un-

authorized passengers,’’

7. The Plaintiff has exhausted all grievance procedures

and administrative remedies under the Contract in an at-

tempt to be reinstated, without success,

& The Plaintiff has at all times been ready, willing and

able to perform his part of said agreement and has at

various sundry times since September 15, 1969, made de-

mand upon the Defendants to perform the terms thereof,

as required by the said Agreement,

9 That just prior to the date of discharge Plaintiff's

average work week was forty (40) howes straight time and

7.06 hours overtime, Plaintiff’s rate at that time was $4.15

per hour straight time and $6.195 per hour overtime,

Therefore, Plaintiff's average weekly pay check was

$208.94, plus fringe benefits, as provided for in the afore.

mentioned contract of employment fringe benefits,

10, That subsequent to the date of discharge the con-

tract of employment has provided for periodic increases

in the hourly rate for Plaintiff's classification, to which he

would have been entitled, had defendants not unlawfully

discharged him.

11. That as a result of the unlawful discharge of the

Plaintiff, which was in violation of the contract of employ-

18a Complaint

ment, the Plaintiff has been deprived of the opportunity of

earning upwards of Fifty Six Thousand Dollars ($56,-

000.00) in gross wages, plus all of the fringe benefits pro-

vided in said contract of employment, which fringe bene-

fits have a value of upwards of Twelve Thousand Dollars

($12,000.00), from the date of discharge until the com-

meneement of this suit.’

WHEREFORE Plaintiff hereby demands reinstatement,

to his former position together with a judgment against

the Defendants for all back pay and fringe benefits to which

he would have been entitled together with interest thereon

from September 15, 1969, until paid, plus cost of this suit

and attorney fees, to his damages in the amount of Two

Hundred Fifty Thousand ($250,000.00) Dollars for whieh

he brings this suit.

DATED: October 12, 1973,

/s/ Karl L. Smart, Plaintiff

GEORGE BASHARA, SR.

Attorney for Plaintiff

20233 Mack Avenue

Grosse Pointe Woods, Mi, 48236

884-9410

STATE OF MICHIGAN |)

SS.

Karl L. Smart being first duly sworn says that he is the

Plaintiff in the above captioned cause; that he has heard

read the foregoing Complaint by him signed and under-

stands the meaning and contents thereof and that the

same is true of his own knowledge except as to matters

therein stated to be upon information and belief and as

to those matters he believes it to be true.

/s/ EARL L. SMART

Motion to Dismiss 19a

Subscribed and sworn to before me

this 12th day of October, 1973

/s/ ELIZABETH M. HULL

Notary Public, Macomb County, acting

in and for Wayne County, Michigan

My commission expires: Dee, 2, 1975

(Title of Court and Cause)

MOTION 'TO DISMISS PLAIN TIFE’S COMPLAINT

PURSUANT TO F.R.C.P, 12(b)(1) and (6) FOR LACK

OF SUBJECT MATTER JURISDICTION AND FOR

FATLURB TO STATE A CLAIM UPON WHICH

RELIEF CAN BE GRANTED

NOW COME Defendants, by and through their attorneys,

George T, Roumell, Jr, and Riley and Roumell, and move

this Honorable Court to dismiss said cause pursuant to

F.R.C.P. 12(b)(1) and (6), for the reason that the relief

prayed in Plaintiff's Complaint cannot be granted for the

following reasons:

A, That Plaintiff alleges in paragraph 7 of his Com-

plaint, that he exhausted all grievance procedures under

the collective bargaining agreement.

B. That Plaintiff’s grievance was progessed, pursuant

to the terms of the collective bargaining agreement, to arbi-

tration before the Joint State Cartage Committee which

denied said grievance on September 16 and 17, 1969. (See

attached Exhibit A),

20a Motion to Dismiss

rehearing on October 21, 1969, (See attached Exhibit B).

D. That the collective bargaining agreement between

the parties provides that the decision of the joint State

Cartage Committee is final and binding upon the parties.

(See attached Exhibit C).

ki. ‘That, as a matter of law, Plaintiff’s exclusive remedy

was that provided in the collective bargaining agreement

and Plaintiff is barred from maintaining an action at law

in this matter. Humphrey v. Moore, 375 U.S. 335, 351

(1964); Union News v. Hildreth, 295 F 2d 658 (6th Cir.

1961); Simmons v. Union News Company, 341 F 2d 531

(6th Cir, 1965); Rushton vy. Howard Sober, Inc., 198 F.

Supp. 337 (WD Mich. 1961).

I’. Plaintiff has refused to concur in this Motion.

WHEREFORE, for the above reasons, Defendants pray

that the Complaint be dismissed with prejudice and that

costs and attorney fees, so wrongfully sustained, be awarded

to Defendants.

RILEY AND ROUMELL

By:

/s/ George T. Roumell, Jr.

and

/s/ John F. Brady

Attorneys for Defendants

720 Ford Building

Detroit, Michigan 48226

Telephone: 962-8255

Dated: March 18 ,1974.

Contract Excerpts 2la

KXHIBIT C TO MOTION TO

DISMISS PLAINTIFEF’S COMPLAINT—

CONTRACT EXCERPTS

Central States Area

Local Cartage Supplemental Agreement

ARTICLE 43.

Grievance Machinery and Union Liability

The Unions and the Employers agree that there shall be

no strike, lockout, tie-up, or legal proceedings without first

using all possible means of settlement, as provided for in

this Agreement, and in the National Agreement, if appli-

eable, of any controversy which might arise.

Section 1.—General

Disputes shall first be taken up between the Employer

and the Local Union involved, Failing adjustment by these

parties, the following procedure shall then apply:

(a) Where a Joint Local Area Committee, by a majority

vote, settles a dispute, no appeal may be taken to the Joint

State Cartage Committee, Sueh decisions will be final and

binding on both parties.

(b) Where a Joint Local Area Committee is unable to

agree or come to a decision on a case, or where there is no

such committee, it shall, at the request of the Union or the

Employer involved, be appealed to the Joint State Cartage

Committee at the next regular constituted session.

Minutes of the local committee shall set forth the posi-

tion and facts relied on by each party, but each party may

supplement such minutes at the hearing before the Joint

State Cartage Committee.

22n Contract Excerpts

ity vote, settles a dispute, no appeal may be taken to the

Joint Area Cartage Committee. Such decision will be final

and binding on both parties.

(d) Where a Joint State Cartage Committee is unable

to agree or come to a decision on a ease, it shall, at the

request of the Union or the Employer involved, be appealed

to the Joint Area Cartage Committee at the next regular

constituted session, unless the parties mutually agree to

umpire handling. Matters pertaining to interpretation are

not subject to umpire handling at this level.

Where the Joint Area Committee by majority vote settles

a dispute such decision shall be final and binding on both

parties with no further appeal.

(e) It is agreed that all matters pertaining to the inter-

pretation of any provisions of this Agreement may be re-

ferred by the State Secretary for the Union or the State

Secretary for the Employers at the request of either the

Kmployer or the Union parties to the issue with notice to

the other Secretary, to the Joint Area Area Cartage Com-

mittee at any time for final decision, At the request of the

Company or Union representative, the Joint Area Cartage

Committee shall be convened on seventy-two (72) hours

notice to handle matters so referred,

(1) Deadlocked eases may be submitted to umpire han-

dling if a majority of the Joint Area Cartage Committee

determine to submit such matter to an umpire for decision.

Otherwise either party shall be permitted all legal or eco-

nomic recourse,

(z) Ferilure of any Joint Committee to meet without

fault of the complaining side, refusal of either party to

submit to or appear at the grievance procedure at any

Contract Excerpts 23a

stage, or failure tv comply with any final decision, with-

draws the benefits of ARTICLE 43.

(h) In the event of strikes or work stoppages or other

activities which are permitted in case of deadlock, default,

or failure to comply with majority decisions, no interpre-

tation of this Agreement by any tribunal shall be binding

upon the Union or affect the legality or lawfulness of the

strike unless the Union stipulates to be bound by such in-

terpretation, it being the intention of the parties to resolve

all questions of interpretation by mutual agreement. Noth-

ing herein shall prevent legal proceedings by the Employer

where the strike is in violation of this Agreement.

(i) The procedures set forth herein may be invoked

only by the authorized Union representative or the Em-

ployer.

Section 2.

It is further mutually agreed that the Local Union will,

within two weeks of the date of the signing of this agree-

ment, serve upon the Employer a written notice, which

notice will list the Union’s authorized representatives who

will deal with the Employer, make commitments for the

Union generally, and in particular have the sole authority

to act for the Union in calling or instituting strikes or any

stoppages of work, and the Union shall not be liable for any

activities unless so authorized. The Union may, from time

to time, amend its list of authorized representatives by noti-

fication by Certified Mail. It is further agreed that in all

eases of an unauthorized strike, slow-down, walk-out, or

any unauthorized cessation of work in violation of this

Agreement, the Union shall not be liable for damages re-

sulting from such unauthorized acts of its members.

24a Contract Excerpts

While the Union shall undertake every reasonable means

to induce such employees to return to their jobs during

any such period of unauthorized stoppage of work men-

tioned above, it is specifically understood and agreed that

the Employer during the first twenty-four (24) hour period

of such unauthorized work stoppage shall have the sole

and complete right of reasonable discipline short of dis-

charge, and such Union members shall not be entitled to

or have any recourse to any other provisions of this Agree-

ment, After the first twenty-four (24) hour period of such

stoppage, and if such stoppage continues, however, the

Kmployer shall have the sole and complete right to imme-

diately discharge any Union member participating in any

unauthorized strike, slow-down, walk-out, or any other ces-

sation of work, and such Union members shall not be en-

titled to or have any recourse to any other provision of

this Agreement. It is further agreed and understood that

the Central States Drivers Council shall not be liable for

any strike, breach, or default in violation of this Agreement,

unless the act is expressly authorized by its Executive

Board. A properly designated officer of the Central States

Drivers Council shall, within twenty-four (24) hours after

request is made to the Secretary of the Central States

Drivers Council, declare and advise the party making such

request, by telegram, whether the Council has authorized

any strike or stoppage of work. The Central States Drivers

Council shall make immediate effort to terminate any strike

or stoppage of work which is not authorized by it without

assuming liability therefor.

It is understood and agreed that failure of the Central

States Drivers Council to authorize a strike by a Local

\nion shall not relieve such Local Union of liability for

eee

Contract Excerpts 25a

a strike authorized by it and which is in violation of this

Agreement.

Section 3.

Notwithstanding anything herein contained, it is agreed

that in the event any Employer is delinquent at the end of

a period in the payment of his contribution to the Health

and Welfare or Pension Fund or Funds created under this

Agreement, in accordance with the rules and regulations

of the Trustees of such Funds, after the proper official

of the Local Union has given seventy-two (72) hours

notice to the Employer of such delinquency in Health and

Welfare and Pension payments, the Local Union or Area

Conference, shall have the right to take such action as they

deem necessary until such delinquent payments are made,

and it is further agreed that in the event such action is

taken, the Employer shall be responsible to the employees

for losses resulting therefrom.

Section 4.—National Grievance Committee

Grievances and questions of interpretation which are

subject to handling under the provisions of Article 8 of

the National Agreement shall be referred promptly to the

National Grievance Committee in accordance with such

Article 8.

ARTICLE 44.

Discharge or Suspension

The Employer shall not discharge nor suspend any em-

ployee without just cause, but in respect to discharge or

suspension shall give at least one warning notice of the

complaint against such employee to the employee, in writ-

ing, and a copy of the same to the Local Union and job

26a Contract Eacerpts

steward affected, except that no warning notice need be

given to any employee before he is discharged if the cause

of such discharge is dishonesty or drunkenness, or reck-

lessness resulting in serious accident while on duty, or the

carrying of unauthorized passengers while on the job. The

warning notice as herein provided shall not remain in

effect for a period of more than nine (9) months from the

date of said warning notice.

Discharge must be by proper written notice to the em-

ployee and the Local Union affected. Any employee may

request an investigation as to his discharge or suspension.

Should such investigation prove that an injustice has been

done an employee, he shall be reinstated. The Committees

established by this Supplemental Agreement and the Na-

tional Agreement shall have the authority to order full,

partial, or no compensation for time lost. Appeal from dis-

charge, suspension or warning notice must be taken within

ten (10) days by written notice, and a decision reached

within thirty (80) days from the date of discharge, suspen-

sion or warning notice. If the employee involved is not in

the home terminal area when the action of disebarge, sus-

pension or warning notice is taken, the ten (10) day period

will start from the date of his return to the home terminal.

If no decision has been rendered within thirty (80) days,

the case shall then be taken up as provided for in ARTT-

CLE 43, Section 1, of this Agreement.

Uniform rules and regulations with respect to discipli-

nary action may be drafted for each state but must be ap-

proved by the Joint State Committee for such state and

by the Joint Area Committee. Such approved uniform rules

and regulations shall prevail in the application and inter-

pretation of this Article.

Amended Complaint 27a

(Title of Court and Cause)

AMENDED COMPLAINT

COUNT I

NOW COMES Earl Smart, Plaintiff, by his Attorney,

GEORGE BASHARA, SR., and for his Complaint in this

cause respectfully shows unto this Honorable Court as

follows;

1. That Plaintiff is a citizen of the State of Michigan,

and Defendant, Ellis Trucking Co., Inc. is a corporation

incorporated under the laws of the State of Indiana and

is authorized to do business in the State of Michigan. Plain-

tiff is informed and believes that Defendant, Navajo-Ellis

Trucking Co., Ine. is incorporated under the laws of the

State of New Mexico and is authorized to do business in

the State of Michigan.

2, That the matter in controversy exceeds, exclusive of

interest and costs, the sum of TEN THOUSAND DOL-

DARS ($10,000.00).

(Deleted in Original)

franchise and business to Navajo-Ellis Trucking Co., which

assumed all of Ellis Trucking Company’s debts and obli-

gations of every kind and nature which would include

Plaintiff’s claim herein and including its obligations un-

der the contract with the Local 299 of the Teamsters

Union hereinafter set forth.

4. That on or about September, 1969, Plaintiff was in

the employment of the Defendant, Ellis Trucking Co., Ine.

under a written contract of employment, between the De-

fendant and Local Union No. 299 affiliate of International

2sa Amended Complaint

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, Article 44 of the Central States area

Local Cartage Supplemental Agreement to the aforemen-

tioned contract, reads in part as follows:

‘‘The Employer shall not discharge nor suspend

any employee without just cause, but in respect to

discharge or suspension shall give at least one warn-

ing notice of the complaint against such employee

to the employee, in writing, and a copy of the same

to the Local Union and job steward affected, except

that no warning notice need to given to any em-

ployee before he is discharged if the cause of such

discharge is dishonesty ov drunkenness, or reck-

lessness resulting in serious accident while on duty,

or the carrying of unauthorized passengers while on

the job. The warning notice as herein provided shall

not remain in effeet for a period of more than nine

(9) months from the date of said warning notice, ...’’

5. Contrary to the contract of employment as aforesaid,

the Defendants on September 15, 1969, discharged the

Plaintiff without jast cause.

6. Also contrary to the contract of employment as

aforesaid, the Defendants failed to give at least one warn-

ing notice of the complaint against the Plaintiff to the

Piaintiff in writing, as required by the employment con-

tract. The cause of such discharge was not dishonesty or

drunkenness or recklessness, nor the carrying of unauthor-

ized passengers.

7. The Plaintiff has exhausted all grievence procedures

and administrative remedies under the Contract in an at-

tempt to be reinstated, without success,

8. The Paintiff has at all times been ready, willing and

Amended Complaint 29a

able to perform his part of said agreement and has at

various sundry times since September 15, 1969, made de-

mand upon the Defendants to perform the terms thereof,

as required by the said Agreement.

9, That just prior to the date of discharge Plaintiff’s

average work week was forty (40) hours straight time and

7.06 hours overtime. Plaintiff’s rate at that time was $4.13

per hour straight time and $6.195 per hour overtime. There-

fore, Plaintiff’s average weekly pay check was $208.94, plus

fringe benefits, as provided for in the aforementioned con-

tract of employment, fringe benefits.

10. That subsequent to the date of discharge the con-

tract of employment has provided for periodic increases

in the hourly rate for Plaintiff’s classification, to which he

would have been entitled, had defendants not unlawfully

discharged him.

11. That as a result of the unlawful discharge of the

Plaintiff, which was in violation of the contract of em-

ployment, the Plaintiff has been deprived of the oppor-

tunity of earning upwards of SIXTY-FIVE THOUSAND

DOLLARS ($65,000.00) in gross wages, plus all of the

fringe benefits provided in said contract of employment,

which fringe benefits have a value of upwards of FIFTEEN

THOUSAND DOLLARS ($15,000.00), from the date of

discharge until the date of filing this Amended Complaint.

WHEREFORK, Plaintiff hereby demands reinstatement

to his former position together with a judgment against

the Defendants for all back pay and fringe benefits to

which he would have been entitled together with interest

thereon from September 15, 1969, until paid, plus cost of

this suit, attorney fees and interest, to his damages in

30a Amended Complaint

the amount of TWO HUNDRED FIFTY THOUSAND

($250,000.00) DOLLARS for which he brings this suit.

/s/ KARL L. SMART

Plaintiff

DATED: June ...., 1974.

COUNT II

NOW COMES Earl Smart, Plaintiff, by his Attorney,

GKHORGKHE BASHARA, SR., and for his Complaint in this

cause against LOCAL UNION NO, 299, affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, shows unto this

Honorable Court as follows:

1. That Plaintiff is a citizen of the State of Michigan,

and Defendant, LOCAL UNION NO, 299, affiliated with

the International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, hereinafter called

the “*UNION’’, is the labor Union in the purview of the

Labor Management Acts, enacted by the United States

Congress, and particularly the Labor Management Act 29

USC Section 185 and Subsections thereunder, engaged in

interstate commerce and affecting interstate commerce.

2. The matter in controversy, exclusive of interests and

costs, is the sum of TEN THOUSAND DOLLARS ($10,-

000.00)

3. For many years the Defendant Union had been

selected as the bargaining union representative of the

employees of the Ellis Trucking Company and the Navajo-

His Trucking Co., Ine., two of the other Defendants named

in Count I above,

4. That as such representatives of the employees of

the Ellis Trucking Co, and the Navajo-Ellis Trucking Co.,

Amended Complaint dla

Ine., the Defendant Union entered into a local cartage sup-

plemental agreement for all of its over-the-road haulers

and drivers, including the Plaintiff. Article 44 of the Cen-

tral States Area Local Cartage Supplemental Agreement,

the aforementioned contract, reads in part as follows:

“The Employer shall not discharge nor suspend

any employee without just cause, but in respect to

discharge or suspension shall give at least one warn-

ing notice of the complaint against such employee

to the employee, in writing, and a copy of the same

to the Local Union and job steward affected, except

that no warning notice need be given to any em-

ployee before he is discharged if the eause of such

discharge is dishonesty or drunonness, or reckless-

ness resulting in serious accident while on duty, or

the carrying of unauthorized passengers while on

the job, The warning notice as herein provided shall

not remain in effeet for a period of more than nine

(9) months from the date of said warning notiee,...”’

+. Under said union contract with the Defendant em-

ployers, Ellis Trucking Co, and the Navajo-Ellis Trucking

(‘o., Ine., it was the duty of Defendant Union to fairly and

fully, withont discrimination, represent all of its members,

including the Plaintiff in any employer's violation of their

just rights under the Labor Management Acts and under

the common law in their relationship of employer and em-

plovee. The Union owed this Plaintiff, therefore, the duty

of fair, full, complete, honest and unbiased representation

of any grievance that he might have against his employer,

the other Defendants herein, in any violation of his con-

tractual or civil rights under the laws of the United States.

6. Contrary to the contract of employment as aforesaid,

B2a Amended Complaint

Defendants, Hillis Trucking Company and the Navajo-Ellis

Trucking Co., Ine, did on or about September 15, 1969,

discharge the Plaintiff without just cause: also, without

just cause and contrary to the contract of employment as

aforesaid, Defendant employers failed to give at least

one warning notice to Plaintiff of their complaints against

him in writing as the cause of his discharge, as required

by the employment contract. The cause of such discharge

was not ‘dishonesty, drunkenness, recklessness nor the

carrying of unauthorized passengers.’’ It was falsely based

ona trumped-up charge that he had refused to obey the

orders of the Kroger Company in failing to load two ‘‘pal-

lets’? at a time on the trailer which was being unloaded by

a ** Hi-Lo’? fork lift being operated by Kroger employees.

This procedure known by the Kroger Company to be unsafe

for the reason that the ‘Hi-Lo’? driver cannot see beyond

one ‘pallet’? and a driver could get pinned between the

“Hi-Lo” and the freight and could be most seriously in-

jured, all in contravention of the safety rules and regula-

tions and laws of the United States, Nevertheless, Com-

plainant did not refuse to unload two pallets, ‘but could

not unload the second pallet until Kroger’s employees had

removed the first pallet from behind Ellis’ trailer, The

reason given Complainant was they had no other ‘TTi-Lo”’

available, because they were busy elsewhere in the ware-

house,

7. That immediately upon his discharge, Plaintiff de-

manded that Defendant Union file grievances and restore

his employment for the reason that he had not done any-

thing in violation of the legitimate laws, rules or regulations

of the employers or their customers.

s, That the Union went through several motions al-

Amended Complaint Joa

legedly filing documents which were not understood by

Plaintiff and supposedly held meetings and hearings at one

or two levels, Finally, when he asked that the decision of

the various union committees, which had been most un-

justly rendered against him, he finally obtained statements

from witnesses that the practice that he had followed in

refusing to unload two pallets from the trailer was abso-

lutely correct and that to do so was, indeed, a dangerous

act and should not have been demanded from him, much

less that he should be discharged for refusing and failing

to perform such an unsafe activity.

9. That after several fruitless levels of the grievance

procedure, so-called, this Complainant charges that there

was collusion between the employer and the persons al-

legedly representing him at these various stages of the

grievance procedures, Notwithstanding several sham ap-

peals supposedly made by the Defendant Union to their

several committees to overturn such rulings and to give a

full and fair hearing, their repeated dictum was: ‘‘ where

a joint state cartage committee by majority vote settles a

dispute, no appeal may be taken to the joint area cartage

committee. Such decision will be final and binding on both

parties.’’ Complainant says that these so-called appeals to

the various committees were merely perfuntory, that they

were part and parcel of a conspiracy between the Union

and the employer to deny this Complainant his just rights

under the Labor Management Act and under his civil rights

to which he is entitled under the Civil Rights Act of 1964.

Complainant says that in all their proceedings he was not

fairly, competently thoroughly or completely represented

by his Union as he was entitled to be; and that only through

a hearing in the Courts of this land can he be accorded his

34a Amended Complaint

just, legal and civil rights, because of the desire of the

Union to placate the employer irrespective of the eivil

rights of the employee in the matter,

10. That the Complainant furnished the Defendant

Union a copy of an Affidavit of a witness, John Lattimore,

who could testify to the facts, but the Union refused to eall

said witness or to notify said witness to come to the hear-

ing, despite Complainant’s repeated pleas to the Defendant

Union to call witnesses in presenting his grievance to the

several Learing committees. Such failure to present evi-

dence resulted in a chorus of ‘‘rehearing denied—no new

evidence presented’’,

WHEREFORKH, for the above reasons that the said

Union has failed to fairly, honestly and thoroughly repre-

sented him in this claim for unjust discharge, said Union

should compensate him for all the loss that he has endured

from September 11, 1969, to the date of hearings, together

with costs, interest, attorney fees and personal damages

to the sum of TWO HUNDRED FIFTY THOUSAND

DOLLARS ($250,000.00), for which he brings this suit.

/s/ EARL L. SMART

Plaintiff

DATED: June ...., 1974.

COUNT III

NOW COMES Ear! L. Smart, above-named Plaintiff, by

his said attorney, GEORGE BASHARA, SR., and eom-

plains of all the Defendants, Ellis Trucking Company,

Navajo-Ellis Trucking Co., Ine., and the UNION as cons-

pirators to deny him his just hearing to obtain his just

rights for his cause of action says:

Amended Complaint 35a

1. Plaintiff respectfully requests that Court I and

Count II of this Amended Complaint be included herein,

and hereby adopts them as pertinent paragraphs under

Count III, as if the same were repeated in full under

Count ITI.

2. Plaintiff says that all of the Defendants, conspiring

together to cheat, wrong and deprive Plaintiff of his just

rights to employment under the said National Master

Freight Agreement and the Central States Area Local

Cartage Supplemental Agreement between the Union rep-

resenting, (supposedly) the interest of the Plaintiff, and

the said employer, the Defendants, Ellis Trucking Com-

pany and Navajo-Ellis Trucking Co., Inc.

3. When the grievance was allegedly filed on behalf

of this Plaintiff, he left it entirely in the hands of the

Union and expected them to protect his rights and to do

what had to be done to set aside his unlawful discharge

by the other Defendants and relied completely and ab-

solutely on his steward and the other hierarchy of the

Union, not only to process his grievance at the first level,

but to carry it further to all stages of the grievance pro-

cedure, and through the National Labor Relations Board.

4. Plaintiff gave names of two witnesses mentioned in

Counts I and II who would testify at any arbitration hear-

ing in favor of this Plaintiff who would testify that it is

extremely dangerous to put two pallets on the trailer at

the same time. In fact, one of the witnesses himself was

injured in loading pallets in that manner. Complainant is

informed and believes the truth to be the employee who

was injured also was discharged by the Defendant Ellis

Trucking Company for complaining about the lack of saf-

ety in this method of loading the pallets onto his trailer.

36a Amended Complaint

Do. Plaintiff further says that the said witness, JOHN

LATTIMORE, was prepared to testify for the Plaintiff

at several ‘‘hearings’’ conducted by the Union at the sev-

eral stages, but that the Union never called Mr. Lattimore

to testify on behalf of this Plaintiff. This Plaintiff was un-

informed and uninitiated in the procedure and relied com-

pletely and absolutely on the Union to bring his witnesses

to the hearing.

6. When John Lattimore heard that the hearing had

been held and that he had not been notified to appear at

the hearing to testify on behalf of the Plaintiff, he volun-

tarily made out an Affidavit stating all the above. This

was subseribed and sworn to before Leonard H. Horowitz,

Notary Public, Wayne County, Michigan on August 19,

1970. The Plaintiff had several copies of the Affidavit made,

sending one each to Mr. Banks, the Steward, the Business

Agent, Karl Greyhead (phonetic), and Mr. MeMasters at

the offices of Defendant Local 299, but said Affidavits were

never presented at any meeting of the Grievanee Board

or any of the joint State Cartage Committee hearings which

repeatedly only gave summaries to the effect that they had

‘‘heard the evidence’’ or that ‘‘there was no new evidence

presented’? and refused to give the Plaintiff a rehearing,

even when it was brought out that his witnesses were not

ealled by the Union nor were either of the Affidavits ever

presented in the presence of this Plaintiff.

7. A driver by the name of Paul believed this Plaintiff

in that delivery at the Kroger grocery company, and Plain-

tiff is informed and believes and charges the truth to be

that he too was prepared to testify as to the conduct of

this Plaintiff in that delivery to the effect that it was usual

and ordinary method of unloading this trailer, one pallet

Amended Complaint 37a

at a time. Further, that he was told to unload only one

pallet from the trailer at a time,

8. Plaintiff further says that after he had loaded one

pallet on the dock, he repeatedly requested the ‘*Hi-Lo’’

driver, foreman, dock workers to remove the pallet so

that he could unload his second pallet onto the dock, but

none came to do so. Coniplainant requested the ‘*Hi-Lo’’

driver to remove the pallet so that he could unload another

on the dock, and he again refused to do so, ‘beeause he

was too busy elsewhere,’’ That when the foreman of the

Kroger Company came along the doek and inquired of the

Plaintiff why he did not unload the second pallet, Com-

plainant told him that his men had not removed the first

pallet from the dock immediately behind Ellis’s trailer,

and, therefore, Complainant could not safely unload the

second pallet for lack of room to maneuver,

9. Thereupon and instantly the said foreman of the

Kroger Company said to the Complainant, **You are now

fired.’’ The foreman then immediately went to the tele-

phone, ealled Ellis and told him that he had just fired the

Complainant and that he did not want him on the premises,

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