# Petition — Ellis Trucking Co. v. Smart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2050%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 958 ## Text 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 16 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 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 2 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). 3 QUESTIONS PRESENTED I. 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. i) 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- G 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. 7 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. 5 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, 9 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, I, 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- 10 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 - - = 11 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). 12 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 — 13 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). 14 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- 15 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, 16 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- 17 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. ~~ Cs 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 - 19 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 20 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 Civil Rights Act of 1964, 42 U.S.C. © 20000-5, be tolled while 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 21 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). to to 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- 23 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). 2 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. 25 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). 26 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). 27 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- 28 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). 29 (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, ~ 30 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, 31 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, 32 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). 33 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, 34 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 ° . 35 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 36 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 - 37 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). a 3S 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. 39 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). 40 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). 41 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 ee - — 43 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 44 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. 45 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 I 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 ee 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, v. 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 . ~—- LO OE II LE RE rE woman, oe were gare ar a . . . . = 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. COUNTY OF WAYNE ©) 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: l 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 ©. That the Joint State & Cartage Committee denied 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). II 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 (c) Where a Joint State Cartage Committee, by a major- 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2050%3A1. Public record. Not legal advice.