Petition — Gallagher v. Chrysler Corp.

Gupreme Court, U.& "We

rit2ys

€9-2012 JUN 20 1980 6

MICHAEL RODAK, JR., -

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

———_¢——_

RAYMOND R. GALLAGHER,

Petitioner,

Vv

CHRYSLER CORPORATION,

Respondent.

——_@q———

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

——e——

ROBERT J. DINGES (P 12799)

GLOTTA, ADELMAN, DINGES,

DAVIS & RILEY, P.C.

1529 Broadway, 4th Floor

Detroit, MI 48226

(313) 964-1190

COUNSEL FOR PETITIONER

OF COUNSEL:

Paul Tobias, Esq.

| 911 First National Bank Bldg.

| Cincinnati, Ohio 45202

| Interstate Brief & Record Co., Wurlitzer Bidg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

SS

TABLE OF CONTENTS

Page

ee DI 1. 5s das wish ag i0n wes EREn ous ii

kg | errr rer se ft ere ee 2

Se SINE 6 i See Cs ene y cob rn edeetas onbaas 3

Jurisdiction hee | i Py fren shea oe Mag res

0 vine np ick w ue ekeies waa nls

ee Or NO ED. oc es cccvekbuscseeaeeas 5

Reasons for Granting the Writ.................... 7

SNE E0554 axes inne taue whee Koes aneowkw ann 19

APPENDIX

Opinion of the Court of Appeals Affirming

Judgment of the District Court (January 22, 1980) 20

Memorandum Opinion and Order of the District

Court Denying Plaintiff's Motion for Rehearing

EO Se, PE ee Or mips ene 24

Memorandum Opinion and Order of the District

Court Granting Defendants’ Motion for Summary

Judgment (January 25, 1977) ................45. 27

Judgment of the District Court (January 25, 1977) .. 29

ii

Page

TABLE OF AUTHORITIES

Cases:

Abrams v. Carrier Corp., 434 F.2d 1234 (CA 2,

1971) cert. denied, 401 U.S. 1009 (1971) ....... 17

Akerman v. Automobile Workers, 82 LRRM 2541

(D.C. Ohio, 1973) . 0... ccc cece cece eevecees 12

Barry v. Detroit Terminal Railroad Co., 307 Mich

MPMI cco ces usc ccaciccsacestceecsovccce 7

Butler v. International Brotherhood of Teamsters,

Local 823, 514 F.2d 442 (CA 8, 1975), cert.

denied, 423 US 924 (1975) ........eeeeeeeees 17

DeArroyo v. Sindicato De Trabajadores

Packinghouse, AFL-CIO, 425 F.2d 281 (CA 1,

1970), cert. denied, 400 US 877 (1970) reh.

denied, 400 U.S. 953 (1971) .........--+eee 16,17

Foust v. IBEW, — U.S. —, 99 S. Ct. 2121, (1979) . 13

Glowacki v. Motor Wheel Corp., 67 Mich. App.

448; 241 N.W.2d 240 (1946) ........--eeeeeees 11

Gonzales v. Longshoremen ILA, Local 1581, 498

F.2d 330 (CA 5, 1974), cert. denied, 419 U.S.

NED iccccocsecsacdbeviedocsesdescceces 12

Gray v. Asbestos Workers, Local 51, 416 F.2d 313

CCA 6, T9GB) 00. ccc ccc ccc cc rcccccvcrcceces 7

Kennedy v. Wheeling-Pittsburgh Steel Corp., 81

LRRM 2349 (CA 4, 1977) ......0e cece ceeceeees 17

Nedd v. United Mine Workers, 400 F.2d 103 (CA

Mei a asus debeddsctveveedensssccceces 12

Price v. Southern Pacific Transportation Co., 586

F.2d 750 (CA 9, 1978) ......c cece cence eeees 17,18

iii

Page

Reliford v. Eastern Coal Corp., 260 F.2d 447 (CA

6, 1958), cert. denied, 359 U.S. 958 ........... 7

Republic Steel Corp. v. Maddox, 379 U.S. 650

SRF 2 hab EA oad ieewn es nee deKen nt aieba R

Ruzicka v. General Motors Corp., 523 F.2d 306

(CA 6, 1975) reh. denied, 528 F.2d 912 (1975) .. 15

Sanderson v. Ford Motor Co., 483 F.2d 102 (CA

We ME aa x Us dae Nis s&s os 52 Ckpue eae eben 17

Smith v. Evening News Association, 371 U.S. 195

a PRR ENS 2s sup acc ps cnase no ees ede 8

Steele v. Louisville & N.R. Co., 323 U.S. 192

A AMM one hoe sees cee addpes coped 9

UAW v Hoosier Cardinal Corp., 383 U.S. 696

CES ChePEU raver api Elec x o.0e8s kes 6 2,11,13,14,

15,16,18,19

Vaca v. Sipes, 386 U.S. 171 (1967)...........000- 9

Statutes:

eis OPE hc lc ba beavcs <du cas peaawel’ 3

National Labor Relations Act, § 9(a), 29 U.S.C.

BOO Kab Padabatken Cheep eeeeianuis ouweeni as 9

Labor-Management Relations Act, § 301, 29

Rs EA eee bp danueeccesecuuncke passim

Michigan Compiled Laws’ Annotated,

ft, RRA rr Pere errr ane 5,14

Michigan Compiled Laws Annotated,

ENE Se vadne seas ee sedeyeuuteuutees 5,14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. —

RAYMOND R. GALLAGHER,

Petitioner,

v

CHRYSLER CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—e—_—

Raymond R. Gallagher prays that a Writ of Certiorari

issue to review the judgment of the United States Court

of Appeals for the Sixth Circuit entered in the

above-entitled case on January 22, 1980.

QUESTIONS PRESENTED

I.

WHERE AN EMPLOYEE FILES SUIT, PURSUANT TO §301,

29 U.S.C. §185, AGAINST HIS EMPLOYER FOR BREACH OF

CONTRACT AND JOINS IN THAT SUIT A CLAIM

AGAINST HIS UNION FOR VIOLATION OF ITS DUTY OF

FAIR REPRESENTATION, IS IT CONSISTENT WITH FED-

ERAL LABOR POLICY AND THIS COURT’S OPINION IN

UAW v HOOSIER FOR THE COURT BELOW TO ADOPT A

UNIFORM STATUTE OF LIMITATIONS AND APPLY THE

SAME STATUTE OF LIMITATIONS TO BOTH THE CLAIM

OF BREACH OF CONTRACT AND THE CLAIM OF VIOLA-

TION OF THE DUTY OF FAIR REPRESENTATION.

Il.

WHERE AN EMPLOYEE FILES SUIT, PURSUANT TO §301,

29 U.S.C. §185, AGAINST HIS EMPLOYER, CLAIMING

BREACH OF CONTRACT FOR WRONGFUL DISCHARGE

AND DEMANDING BACK PAY AND REINSTATEMENT, IS

SUCH A CLAIM, AS THE UNITED STATES COURT OF AP-

PEALS FOR THE SIXTH CIRCUIT RULED, SUBJECT TO A

STATE TORT STATUTE OF LIMITATIONS.

Ill.

WHETHER THIS COURT SHOULD ADOPT A UNIFORM

FEDERAL STATUTE OF LIMITATIONS FOR A SUIT BY AN

EMPLOYEE UNDER §301, 29 U.S.C. §185, AGAINST HIS

EMPLOYER FOR BREACH OF CONTRACT WHEN THE

SUIT IS ACCOMPANIED BY A CLAIM THAT THE

EMPLOYEE’S UNION VIOLATED ITS DUTY OF FAIR

REPRESENTATION.

OPINIONS BELOW

The opinion of the Court of Appeals is unreported

and is printed in the attached Appendix (p. 20). The

Opinion of the District Court for the Eastern District of

Michigan is unreported and is printed in the Appendix

(p. 27). The subsequent Opinion and Order of the

District Court denying Petitioner’s Motion for

Rehearing is unreported and is printed in the

Appendix. (p. 24).

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on January 22, 1980. On April 21,

1980, Mr. Justice Stewart signed an Order extending the

time for filing this Petition for Certiorari to and

including June 20, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

§ 301 of the Labor Management Relations Act of 1947,

29 U.S.C. § 185:

“(a) Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this Act, or between any such labor

organizations, may be brought in any district court of

the United States having jurisdiction of the parties,

without respect to the amount in controversy or

without regard to the citizenship of the parties.

4

(b) Any labor organization which represents

employees in an industry affecting commerce as

defined in this Act and any employer whose

activities affect commerce as defined in this Act shall

be bound by the acts of its agents. Any such labor

organization may sue or be sued as an entity and in

behalf of the employees whom it represents in the

Courts of the United States. Any money judgment

against a labor organization in a District Court of the

United States shall be enforceable only against the

organization as an entity and against its assets, and

shall not be enforceable against any individual

member oi his assets.

(c) For the purposes of actions and proceedings by

or against labor organizations in the District Courts

of the United States, District Courts shall be deemed

to have jurisdiction of a labor organization (1) in the

district in which such organization maintains its

principal office, or (2) in any district in which its

duly authorized officers or agents are engaged in

representing or acting for employee members.

(d) The service of summons, subpoena, or other

legal process of any Court of the United States upon

an officer or agent of a labor organization, in his

capacity as such, shall constitute service upon the

labor organization.

(e) For the purposes of this section, in determining

whether any person is acting as an ‘agent’ of another

person so as to make such other person responsible

for his acts, the question of whether the specific acts

performed were actually authorized or subsequently

ratified shall not be controlling.”’

5

Michigan Compiled Laws Annotated, § 600.5805(7):

“No person may bring or maintain any action to

recover damages for injuries to persons or property

unless, after the claim first accrued to himself or to

someone through whom he claims, he commences

the action within the periods of time prescribed by

this section.***

(7) The period of limitations is three years for all

other actions to recover damages for injuries

to persons and property.”

Michigan Compiled Laws Annotated, § 600.5807(8):

“No person may bring or maintain any action to

recover damages or sums due for breach of contract,

or to enforce the specific performance of any contract

unless, after the claim first accrued to himself or to

someone through whom he claims, he commences

the agtion within the periods of time prescribed by

this section.***

(8) The period of limitations is six years for all

other actions to recover damages or sums due

for breach of contract.’’

STATEMENT OF THE CASE

Petitioner (hereinafter plaintiff), a former employee of

respondent (hereinafter defendant), was discharged

from his employment as a result of an altercation with a

fellow employee on December 6, 1971.

A grievance was filed protesting plaintiff's discharge

by the duly authorized bargaining representative, Local

Union 372, United Automobile Aerospace and

6

Agricultural Implement Workers of America (UAW).

The grievance was denied by defendant and then

appealed by the union to the Appeal Board step or third

step of the grievance procedure. On June 28, 1972, the

union withdrew the grievance without prejudice.

On February 13, 1976, plaintiff commenced this action

seeking loss of wages and reinstatement in the United

States District Court for the Eastern District of

Michigan. The jurisdiction of the District Court was

invoked under §301 of the Labor Management

Relations Act of 1947, 29 U.S.C. § 185 (hereinafter

§ 301). In his Complaint, plaintiff alleged that defendant

had breached the collective bargaining agreement

between defendant and the union by discharging

plaintiff without just cause. Plaintiff also joined in the

suit the Local Union and the International Union

alleging the union breached its duty of fair

representation when it withdrew its grievance from

arbitration.

On January 25, 1977, Disrict Judge Philip Pratt, in a

written Opinion (p. 27) dismissed the union holding, in

part, that the claim was barred by a state three-year

statute of limitations for personal injury actions. He

dismissed plaintiff's claim against defendant holding

that the § 301 action against his employer was subject to

the same three-year statute of limitations for personal

injury actions.

Plaintiff filed a Motion for Rehearing. On April 1,

1977, District Judge Pratt, in a written Opinion (p. 24)

denied the Motion and affirmed his prior decision.

Plaintiff appealed to the United States Court of

Appeals for the Sixth Circuit from the Order of

Dismissal of defendant and the denial of plaintiff's

7

Motion for Rehearing.’ On January 22, 1980, the Court

of Appeals affirmed the judgment of the District Court

(p. 20). The Court held that the same statute of

limitations applied to both plaintiff's claim against

defendant and against the union and that the applicable

state statute of limitations was the Michigan three year

statute of limitations for personal injury actions.

REASONS FOR GRANTING THE WRIT

In a suit by an employer under § 301, whether the

claim of breach of contract and the claim of violation of

the duty of fair representation are subject to the same

statute of limitations and whether a uniform statute of

limitations for both claims may be judicially created and

whether a breach of contract claim for wrongful

discharge may, under any circumstances, be subject to a

state tort statute of limitations are important and

recurrent federal statutory questions, and separation of

powers questions, which have provoked a diversity of

judicial opinion and should be determined by this

Court.

1 Petitioner did not appeal to the Sixth Circuit the dismissal of

his action against the union. He does not contend that the

characterization of a claim for breach of the duty of fair

representation as tortious, and therefore subject to the state statute

of limitations for personal injury actions, is contrary to federal labor

policy, or otherwise in error. But see, Gray v. Asbestos Workers, Local

51, 416 F.2d 313 (CA 6, 1974). What he did appeal below, and what

is the subject of this Petition is the dismissal of his § 301 action

against his employer for breach of the collective bargaining

agreement. Petitioner asserts that the application of the state tort

statute of limitations to the breach of contract claim by an employee

against his employer is contrary to federal labor policy and to prior

decisions of this Court, infra. It is also in conflict with previous

decisions of the 6th Circuit and of the Michigan Courts. Reliford v.

Eastern Coal Corp., 260 F.2d 447 (CA 6, 1958), cert. denied, 359 U.S

958; Barry v. Detroit Terminal Railroad Co., 307 Mich. 226 (1943).

A.

THE CHARACTERIZATION BY THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT OF PLAINTIFF’S CLAIM

AGAINST HIS EMPLOYER FOR BREACH OF CONTRACT

AS AN ACTION FOR PERSONAL INJURIES, AND THUS

SUBJECT TO A STATE TORT STATUTE OF LIMITA-

TIONS, IS ILLOGICAL, IRRATIONAL AND CONTRARY

TO THE FEDERAL LABOR POLICY.

This is a suit by an employee, who is covered by a

collective bargaining agreement, against his employer

for breach of that agreement. In his complaint, plaintiff

asserts that defendant breached the collective

bargaining agreement and, in particular, violated the

“just cause’ provision of that agreement, by

discharging him without just and sufficient cause.

This type of action has its genesis in Smith v. Evening

News Association, 371 U.S. 195 (1962). In Smith this

Court settled the question affirmatively whether or not

individual employees have a right under § 301 to sue

their employers for breach of the collective bargaining

agreement.

As a matter of federal labor law, there are, of course,

certain procedural obstacles facing an employee who

attempts to sue his employer for breach of contract.

Thus, an employee must first attempt to resort to the

contractual grievance procedure before suit. Republic

Steel Corp. v. Maddox, 379 U.S. 650 (1965). When the

employee resorts to the grievance procedure and places

the dispute with the employer in the hands of the

union, he is bound by the result reached by the union

and the employer so long as his union has not violated

9

the duty of fair representation. In the event the union

has violated its duty of fair representation, an employee

may nevertheless sue his employer for breach of

contract even though he has not exhausted all of his

contractual remedies. Vaca v. Sipes, 386 U.S. 171 (1967).

This, then, is the basic federal labor law. It fully

establishes the right of individual employees to sue

their employers for breach of contract and, at the same

time, promotes peaceful settlement of differences by

requiring adherence to the contract grievance

procedures.

An employee suit against his employer for breach of

contract should not be confused with a suit by a union

member against his union for violation of the duty of

fair representation. The doctrine of fair representation

has a different genesis. It derives from the exclusive

bargaining representative provision of § %a) of the

National Labor Relations Act. Steele v. Louisville & N.R.

Co., 323 U.S. 192 (1944). In the context of an employee

suit under § 3"1 against his employer, this Court held

in Vaca that there was Federal Court jurisdiction under

§ 301 to join a claim against the union for violation of

its duty of fair representation. Joining the union in the

§ 301 action against his employer does not, however,

change the character of the suit from one based upon

breach of the collective bargaining agreement.

“{I]f, to facilitate his case, the employee joins the

union as a defendant, the situation is not

substantially changed. The action is still a § 301

suit .. .”’ Vaca, 386 J.S. at 187

The above abbreviated history of the development of

the federal labor law with respect to an employee suit

10

against his employer for breach of contract and with

respect to a claim of violation of the duty of fair

representation and with respect to the joinder of the

claims in one suit has somehow led the Court below to

turn the employee suit against his employer under § 301

into a fair representation suit. Thus, the Court below

characterized or adopted a State Court characterization

of plaintiff's claim against his employer as being

grounded in tort and therefore applied the State three

year tort statute of limitations and barred this suit.

The Court below adopted the District Court's

characterization of plaintiff’s claim against his employer

as one based on a breach of the union’s duty of fair

representation. The District Court provided the

following reasoning for its characterization:

“While plaintiff characterizes his action as one

for breach of contract, it is clear that by the very

contract which he invokes, he has agreed that

the union be the exclusive ‘arbiter’ of any

contractual grievance he has with the company.

The law is equally clear that plaintiff's recourse

to individual action against the company is

conditioned on founded assertions that the

union has breached its duty of fair

representation and then only if the «inion’s

conduct toward the employee is determined to

be ‘arbitrary, discriminatory, or in bad faith.”

Vaca v. Sipes, 386 US 517 (1967). Therefore,

plaintiff’s action can only be characterized as one

based on a breach of the union’s duty of fair

representation. The Michigan Courts have

decided that such an action is subject to the

State three year statute of limitations for personal

11

injury actions. Glowacki v. Motor Wheel Corp., 67

Mich. App. 448; 241 N.W.2d 240 (1946).”’ (p. 28)

The Court below, by adopting this characterization,

has stuck itself out on a limb. It is the only US Circuit

Court of Appeals which has ever characterized an

employee suit against his employer under § 301 as one

based on the breach of the union’s duty of fair

representation.

Aside from the fact that the reasoning and the result

reached are illogical and irrational, the Court below has

made an apple out of an orange, the decision is

absolutely contrary to federal labor policy. This is true

for many reasons.

First, in UAW v. Hoosier Cardinal Corp, 383 U.S. 696

(1966) this Court characterized a suit brought on behalf

of individual employees for violation of vacation rights

under a collective bargaining agreement as one based

on written contract or oral contract. The characterization

given by this Court in Hoosier to a § 301 suit has

obviously not been followed by the Court below. And,

the characterization of the § 301 suit should not and can

not be any different simply because plaintiff originally

joined the union in this suit.

Second, if plaintiff’s claim against his employer is not

based on contract, as the Court below held, it logically

follows that there is no Federal Court jurisdiction under

§ 301. The language of § 301 unmistakably gives Federal

Courts jurisdiction only over “suits for violation of

contracts between an employer and a _ labor

organization. . .’’ Courts confronted with the issue

whether § 301 authorizes jurisdiction in the Federal

Courts over suits based wholly on violation of the duty

of fair representation have uniformly held that it does

12

not. Nedd v. United Mine Workers, 400 F.2d 103 (CA 3,

1968); Gonzales v. Longshoremen ILA, Local 1581, 498

F.2d 330 (CA 5, 1974), cert. denied, 419 U.S. 1070 (1974);

Akerman v. Automobile Workers, 82 LRRM 2541 (D.C.

Ohio, 1973).

Third, if plaintiff's claim against his employer for

breach of contract is based on a tortious wrong, as the

Court below held, it logically follows that an employee

may now recover damages for personal injuries against

his employer in a § 301 suit. Although the Court below

may not have intended this result, it is certain as a

result of the decision below that such claims will now

be made against employers at the District Court level.

Fourth, the characterization of plaintiff's claim against

his employer by the District Court, and as adopted by

the Court below, is inherently contradictory. The

District Court suggested that plaintiff's claim against his

employer was based on the duty of fair representation

because he “agreed that the union be the exclusive

‘arbiter’ of any contractual grievances he has with the

company.” (p. 28) Even if this reasoning sheds some

light on the characterization of plaintiff's claim against

his employer, it is nevertheless true that plaintiff's

agreement is based on the approval and/or ratification of

a contract.

We respectfully submit that the Sixth Circuit has

overstepped the boundaries of the developing federal

labor law by its gross mischaracterization of plaintiff's

claim against his employer. But, aside from the fact that

plaintiff has received a terrible injustice and has been

denied his day in Court, this decision will have a

terribly pernicious affect on federal labor policy. This

distortion, as we have mentioned, will only lead to

further distortions. This Court has historically acted in

13

this area at least, in part, in order to quickly correct a

gross distortion of the federal labor policy, e.g., Foust v.

IBEW, — U.S. —, 99 S.Ct. 2121, (1979). For that reason

alone, this Court should grant this Petition.

THE SIXTH CIRCUIT COURT OF APPEALS HAS

ADOPTED A RULE THAT THE SAME STATUTE OF LIMI-

TATIONS WILL ORDINARILY APPLY TO BOTH THE

CLAIM OF BREACH OF CONTRACT AND THE CLAIM OF

UNFAIR REPRESENTATION AND THUS THE SIXTH CIR-

CUIlT HAS ADOPTED A UNIFORM STATUTE OF LIMI-

TATIONS UNDER §301 IN VIOLATION OF THIS

COURT’S HOLDING IN UAW v. HOOSIER.

In Hoosier, this Court was asked to adopt a uniform

statute of limitations for § 301 suits. The Court rejected

this request and held that this was a matter best left to

Congress.

This Court stated:

“The need for uniformity, then, is greatest when

its absence would threaten the smooth

functioning of these consensual processes that

federal labor law is chiefly designed to promote

— the formation of the collective bargain. 1g

agreement and the private settlement of disputes

under it. For the most part, statutes of

limitations come into play only when these

processes have already broken down. Lack of

uniformity in this area is therefore unlikely to

frustrate in any important way the achievement

of any significant goal of labor policy. Thus,

although a uniform limitations provision for

14

§ 301 suits may well constitute a desirable

statutory addition, there is no justification for

the drastic sort of judicial legislation that is

urged upon us,” Hoosier, 383 U.S. at 702-703.

This Court in Hoosier therefore directed the Federal

Courts to apply in § 301 suits the most applicable State

statute of limitations. In the case at bar there is no State

statute of limitations with respect to an action by an

employee against his employer for breach of contract

which is joined by a claim against a union for violation

of its duty of fair representation.

However, the Sixth Circuit Court of Appeals has

invented one. The Court below held that the same

statute of limitations applies to both claims.

We respectfully submit that this type of judicial

legislation has been specifically rejected by this Court

in Hoosier. In addition, this type of judicial legislation

by the Court below is inherently unfair and

discriminatory towards employees in a § 301 suit.

Further, this type of judicial legislation is totally

unwarranted and will create a host of problems for

Federal Courts.

r It cannot be seriously argued that the Court below

has not engaged in judicial legislation. In Michigan

there is a tort statute of limitations, MCLA 600.5805(7),

and a contract statute of limitations, MCLA 600.5807(8).

However, there is no statute of limitations in Michigan

with respect to a suit in which a claim for breach of

contract is joined with a tort claim.

15

The unfairness and discrimination towards individual

employees who bring § 301 suits is apparent. For

example, let us assume that in Hoosier the individual

employees, instead of the union, brought suit against

the employer. Let us further assume that the individual

employees joined a claim of unfair representation

against the union for its failure to protect ‘their

individual rights contained in the contract. By virtue of

the joinder of the claim against the union, the

substantive rights of the employees under the contract

have not been changed or altered one bit. Why then

should a different statute of limitations be applied to

this suit?

Further, let us assume that the plaintiff in the case at

bar had not joined the union in his § 301 suit. This

would not have affected plaintiff's right to bring a § 301

suit, nor affected or changed his substantive rights

under the contract. Plaintiff would be entitled to a trial

on the merits of his breach of contract claim. Ruzicka v.

General Motors Corp., 523 F.2d 306, 310 (CA 6, 1975),

reh. denied, 528 F.2d 912 (1975).

In the example mentioned above, would a different

statute of limitations apply? Or, in that instance, would

the Court below have nevertheless applied the tort

statute of limitations simply because plaintiff would still

have to prove unfair representation even if the union

was not joined in the suit? We submit the result in

either event is unsound and irrational. A statute of

limitations for a claim clearly should not be determined

by a fortuitous event, such as the presence or absence

of another party. Likewise, it is totally irrational to

apply a statute of limitations on the basis of the statute

of limitations that applies to a cl..m against a person

who is not a party to the lawsuit.

16

The First Circuit Court of Appeals in DeArroyo v.

Sindicato De Trabajadores Packinghouse, AFL-CIO, 425

F.2d 281 (CA 1, 1970), cert. denied, 400 U.S. 877 (1970),

refused to apply a uniform statute of limitations for

both claims in an employee § 301 suit. The Court in

DeArroyo stated:

“While we are satisfied that the proper legal

analysis of the union’s and employer’s duties in

cases such as this requires the imposition of

different statutes of limitations, we are equally

convinced that Congress would be well advised

to enact a federal statute of limitations to deal

with both kinds of claims asserted here.’’ 425

F.2d at 287.

We respectfully submit that the reasoning by the First

Circuit in DeArroyo is entirely consistent with this

Court’s reasoning in Hoosier. The Court below

specifically rejected the First Circuit’s analysis in

DeArroyo. (p. 23) Thus, the decision of the Court below

is in direct contradiction to this Court’s decision in

Hoosier.

C.

THERE IS TREMENDOUS DIVERSITY OF OPINION BY

THE CIRCUIT COURTS OF APPEALS ON THIS ISSUE

AND THEREFORE THIS COURT SHOULD ISSUE A DE-

FINITIVE OPINION TO THE FEDERAL COURTS.

The underpinning of the opinion by the Sixth Circuit

Court of Appeals in the case at bar is that the two

claims, breach of contract and violation of the duty of

fair representation, are so inextricably related and

interconnected that the same statute of limitations

17

should apply to both claims. As mentioned supra, the

Sixth Circuit stands alone in its application of a tort

statute of limitations to the claim of breach of contract.

Other Circuit Courts of Appeals have used similar

reasoning, but come to an opposite result. The Second

Circuit in Abrams v. Carrier Corp, 434 F.2d 1234, 1252;

(CA 2, 1971) cert. denied, 401 U.S. 1009 (1971) applied

the contract statute of limitations to both the claim of

breach of contract and the claim of violation of the duty

of fair representation because of “their interrelated

nature.”

The Fourth Circuit in Kennedy v. Wheeling-Pittsburgh

Steel Corp., 81 LRRM 2349 (CA 4, 1977) applied the

contract statute of limitations to the employee claim of

breach of contract against his employer.

The Fifth Circuit in Sanderson v. Ford Motor Co., 483

F.2d 102 (CA 5, 1973) applied a different statute of

limitations to the claim against the employer and the

claim against the union. Thus, the Fifth Circuit in

Sanderson follows the First Circuit in DeArroyo.

The Eighth Circuit in Butler v. International

Brotherhood of Teamsters, Local 823, 514 F.2d 442, (CA 8,

1975) cert. denied, 423 U.S. 924 (1975) adopted the

contract statute of limitations for both claims. Thus, the

Eighth Circuit relies upon the same reasoning and

analysis as the Court below, but with a different result.

The Court in Butler, noting the conflict in the Circuits,

specifically rejected the result attained by the First

Circuit in DeArroyo and adopted the result of the

Second Circuit in Abrams.

Finally, the Ninth Circuit in Price v. Southern Pacific

Transportation Co., 586 F.2d 750, 753 (CA 9, 1978), made

it clear that its decision to apply the three year

18

California statute of limitations for statutory liability to

a claim for breach of the duty of fair representation

“was not dictated by a desire to make the same statute

applicable to the causes against both the employer and

union.” In language the Petitioner believes well states

the reason why this Petition should be granted, the

Court held, “In our view uniformity must yield to the

results of proper characterization.” Price, 586 F.2d at

753.

It is respectfully submitted that this Court should

settle this issue. There is terrible confusion in the

Courts below and complete diversity of opinion.

This Court in Hoosier refused to adopt a uniform

statute of limitations in a § 301 suit. The First Circuit in

DeArroyo is certainly correct, based on Hoosier, that a

federal statute is needed to deal with these types of

claims.

However, because of the conflict and irreconcilability

of the opinions of the Courts below, it may well be

appropriate for this Court to adopt a uniform statute of

limitations for this type of suit. In that regard we

respectfully submit this Court should absolutely reject

the application of a tort statute of limitations in an

employee’s suit against his employer for a breach of

contract. A suit under § 301, whether brought by the

employer, union, or employee, must be based on

contract and therefore only a contract statute of

limitations can apply.

19

CONCLUSION

We respectfully submit that the ruling of the Sixth

Circuit below is so illogical and irrational that it should

not be allowed to stand. The characterization by the

Sixth Circuit of plaintiffs claim against his employer for

breach of contract as a tort is totally unsound. For that

reason alone this Court should halt the spread of this

pernicious doctrine invented by the Sixth Circuit.

However, broader issues are raised by this Petition.

In Hoosier, this Court directed that the lower Courts

need not be inventive in the area of the statute of

limitations. The lower courts need only to characterize

properly the claim and to look to the most applicable

State statute of limitations.

However, it is now apparent that many of the Circuit

Courts of Appeals have engaged in extensive judicial

legislation and have adopted a tniform statute of

limitations for this type of suit. A fresh review of

Hoosier in relationship to employee § 301 suits should

therefore be in order.

For the reasons stated in the Petition, a Writ of

Certiorari should be granted.

Respectfully submitted,

ROBERT J. DINGES (P 12799)

GLOTTA, ADELMAN, DINGES, DAVIS,

& RILEY, P.C.

1529 Broadway, 4th Floor

Detroit, MI 48226

(313) 964-1190

COUNSEL FOR PETITIONER

OF COUNSEL:

PAUL TOBIAS, Esq.

911 First National Bank Bldg.

Cincinnati, Ohio 45202

20

APPENDIX

OPINION OF COURT OF APPEALS

(No. 77-1327 United States Court of Appeals

for the Sixth Circuit)

(Raymond R. Gallagher, Plaintiff-Appellant, v.

Chrysler Corporation, Defendant-Appellee. Appeal from

the United States District Court for the Eastern District

of Michigan.)

(Decided and Filed January 22, 1980)

Before: Celebrezze and Keith, Circuit Judges, and

Phillips, Senior Circuit Judge.

Phillips, Senior Circuit Judge.

This appeal presents the question of which Michigan

statute of limitations applies to an action filed by

appellant, a former employee of the Chrysler

Corporation, against his employer and his Union under

§ 301 of the Labor Management Relations Act of 1947

[LMRA], 29 U.S.C. § 185. Appellant was discharged by

Chrysler on December 6, 1971, for bringing a revolver

into the Chrysler plant in violation of company rules.

The Union filed a grievance, but dismissed it before

reaching binding arbitration.

This suit was filed on February 13, 1976, some four

years and two months after the discharge and some

three years and seven months after the Union withdraw

(sic) appellant’s grievance at the third step in the

grievance procedure prescribed in the collective

bargaining agreement between Chrysler and the Union.

The stated reason for the Union’s action was that

appellant was aware of the Chrysler rule

21

against bringing firearms into the plant, that Chrysler’s

policy was to discharge employees for violation of the

rule and that the policy of the employer had been

upheld by numerous arbitration decisions. The

complaint charged that appellant was discharged by

Chrysler without good cause and that the Union failed

to represent appellant fairly, honestly and in good faith.

The district court dismissed the action as barred as

against both Chrysler and the Union by the three year

statute of limitations.! The present appeal is only as to

the action against Chrysler. Appellant contends that the

Michigan six year statute of limitations? is applicable to

his suit against Chrysler.

We affirm on the authority of Vaca v.Sipes, 386 U.S.

171 (1967); Smart v. Ellis Trucking Co., 580 F.2d 215 (6th

Cir. 1978), cert. denied, 440 U.S. 958 (1979); and Glowacki

1 As of February 13, 1976, MCL 600.5805(7) read, in pertinent

part:

Sec. 5805. No person may bring or maintain any action to

recover damages for injuries to persons or property unless, after

the claim first accrued to himself or to someone through whom

he claims, he commences the action within the periods of time

prescribed by this section. ... .

(7) The period of limitations is 3 years for all other actions to

recover damages for injuries to persons and property.

2 MCL 600.5807(8) reads in pertinent part:

Sec. 5807. No person may bring or maintain any action to

recover damages or sums due for breach of contract, or to enforce

the specific performance of any contract unless, after the claim

first accrued to himself or to someone through whom he claims,

he commences the action within the periods of time prescribed

by this section... .

(8) The period of limitations is 6 years for all other actions to

recover damages or sums due for breach of contract.

22

v. Motor Wheel Corp., 67 Mich. App. 448, 241 N.W.2d

240 (1976).

Appellant contends that even if the action against the

Union is barred: by the three year statute, the six year

statute applies to the suit against Chrysler, since it is

based on breach of contract.

In Vaca v. Sipes, supra, the Supreme Court recognized

the inherent difficulties raised by the application of

multiple statutes of limitations in an action against an

employer and a union under LMRA, saying:

Assuming for the moment that Swift breached

the collective bargaining agreement in

discharging Owens and that the Union breached

its duty in handling Owens’ grievance, this case

illustrates the difficulties that would result from

a rule pre-empting the courts from remedying

the Union’s breach of duty. If Swift did not

‘participate’ in the Union’s unfair labor

practice, the Board would have no jurisdiction to

remedy Swift’s breach of contract. Yet a court

might be equally unable to give Owens full relief

in a § 301 suit against Swift. Should the court

award damages against Swift for Owens’ full

loss, even if it concludes that part of that loss

was caused by the Union’s breach of duty? Or

should it award Owens only partial recovery

hoping that the Board will make him whole?

These remedy problems are difficult enough

when one tribunal has all parties before it; they

are impossible if two independent tribunals,

with different procedures, time limitations, and

remedial powers, must participate. Id. at 188 n.

12. (Emphasis supplied).

23

We hold that, in an action against an employer and a

Union under LMRA, the same statute of limitations

ordinarily should apply as to both defendants.’ See Vaca

v. Sipes, supra; Smart v. Ellis Trucking Co., supra; Butler

v. International Brotherhood of Teamsters, Local 823, 514

F.2d 442 (8th Cir.), cert. denied, 423 U.S. 924 (1975);

Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970),

cert. denied, 401 U.S. 1009 (1971); Glowacki v. Motor

Wheel Corp., supra.

Appellant contends that his action against Chrysler is

for breach of contract, to which only the six year statute

of limitations applies. The action against Chrysler

asserts a claim for injury to appellant’s earning capacity,

seeking damages in the form of lost wages and

reinstatement. See Marshall v. Chrysler Curp., 378 F.

Supp. 94 (E.D. Mich. 1974); Glowacki v. Motor Wheel

Corp., supra; Stringer v. Sparrow Hosp., 62 Mich. App.

696, 233 N.W.2d 698 (1975).

The controlling rule was stated by the Michigan Court

of Appeals in Glowacki v. Motor Wheel Corp., supra:

In summary, we agree with plaintiff that there

are two separate claims which comprise

plaintiff's complaint. We further agree with

plaintiff that in suits for breach of the duty of

fair representation the governing period of

limitations is the state statute which most

directly applies (International UUAA & AIW v.

Hoosier Cardinal Corp., 383 US 696, 705; 86S Ct

1107, 1113; 16 L Ed 2d 192 [1966]) and that the

two claims are so intimately related as to require

the same period of limitation to apply to both.

Strong reasons of public policy exist for applying

the same period of limitations to both

3 We decline to follow DeArroyo v. Sindicato, 425 F.2d 281 (ist

Cir.), cert. denied, 400 U.S. 877 (1970), to the extent that it applied

different statutes of limitations against the employer and the Union.

24

actions. We disagree that the applicable state

statute is six years. 67 Mich. App. at 462, 241

N.W.2d at 248.

Appellant contends that his discharge was an unjust

and inappropriate remedy; that he brought an unloaded

pistol into the Chrysler plant after another employee,

Charles E. Oxedine, had threatened his life; that

Oxedine was the ring leader of a huge auto parts theft

ring at the plant and later was indicted for that offense;

and that appellant pointed the unloaded pistol at

Oxedine in self defense at a time when Oxedine was

attempting to kill him.

In view of our disposition of the statute of limitations

issue, we do not reach the question of whether

appellant's assertion of his use of an unloaded pistol in

self defense and the other mitigating facts alleged in the

complaint would have constituted a valid defense

against his discharge.

The judgment of the district court is affirmed.

MEMORANDUM OPINION AND ORDER DENYING

PLAINTIFF’S MOTION FOR REHEARING

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed April 1, 1977)

(Raymond Gallagher, Plaintiff v. Chrysler Corporation,

International Union, United Auto Workers (UAW) and

its Local Union 372, UAW, Defendants. No. 670313)

The plaintiff in this action is seeking rehearing on the

merits after this Court granted the defendants’ motions

for summary judgment. The record of the case and this

25

Court’s prior Memorandum Opinion and Order will

reflect that both defendants filed motions for summary

judgment attaching affidavits in support of their legal

positions as required under Rule 56, F.R.C.?. The

plaintiff failed to respond to these motions until

minutes before oral argument was to be heard when he

presented a brief to this Court without benefit of any

affidavits in support thereof. That non-compliance with

the local rules notwithstanding, the Court considered

the plaintiff's brief before determining that it should

grant summary judgment in favor of the defendants.

The Court’s order was filed on January 25, 1977. The

plaintiff filed his motion for rehearing on February 17,

1977.

This Court could, if it desired to do so, simply deny

this motion on the basis of non-compliance with Local

Rule IX-A governing motions for rehearing. That Rule

requires such motions to be filed within 20 days after

judgment is entered. This was not done in this case.

Nor was a Certificate of Counsel filed as required under

the Rule. Finally Rule IX-A explicitly states that

generally ‘motions for rehearing which merely present

the same issues ruled upon by the Court either

expressly or by reasonable implication, will not be

granted.” It is clear from these pleadings that the issues

raised in the motion for rehearing were addressed by

both counsel.

Notwithstanding this failure to comply with the Local

Rule requirements, this Court believes this matter

should be disposed on the merits and is conferred the

discretionary power to do so.

The plaintiff argues that the Court erred in

concluding that the action against defendant Chrysler

was controlled by the Michigan three year statute of

limitations. While the Court’s conclusion on this issue

26

seems to have support in the decision in State Mutual v.

O. & A. Corp., 381 Mich. 318 (1968), it should be

emphasized that even if a longer statute of limitations

was applicable, this claim against Chrysler is barred by

the explicit language of union bargaining contract unless

the plaintiff can demonstrate a bad faith failure of the

union to redress the employee’s grievance against the

company. The Court has reviewed the plaintiff's

untimely affidavit and still is not persuaded that the

action of the union can possibly be characterized as a

breach of its duty of representation.

The Court therefore affirms its decision in its

Memorandum Opinion and finds the plaintiff's

arguments to be without merit. His motion for

rehearing is accordingly denied.

IT IS SO ORDERED.

/s/ Philip Pratt

United States District Judge

Dated: April 1, 1977

Detroit, Michigan

27

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed January 25, 1977)

(Raymond Gallagher, Plaintiff v. Chrysler Corporation,

International Union, United Auto Workers (UAW) and

its Local Union, 372 UAW, Defendants. No. 670313.)

Both defendants to this suit brought under § 301 of

the Labor Management Relations Act (LMRA) have filed

motions, for summary judgment, contending that

plaintiff is barred by the statute of limitations and that

even if the matter was actionable, it must be dismissed

for failure to state a cause of action for which relief may

be granted. Both defendants filed affidavits supporting

the latter ground with their motions and briefs. The

plaintiff failed to respond to these motions until shortly

before oral argument, when he submitted a brief in

response. This brief lacks any affidavits and therefore

the defendants’ affidavits must be considered to be

unrebutted and true, for purposes of the motion. Rule

56, F.R.C.P.

Defendant Chrysler Corporation argues that the

action must be dismissed against it as it (1) is barred by

the applicable 3-year statute of limitations, and (2) is an

action in violation of the collective bargaining

agreement signed by the plaintiff which provides that

the union remedies be the exclusive remedies for any

grievance against the company.

In UAW v. Housser Cardinal Corp., 383 U.S. 696 (1966)

the Supreme Court held that the governing statute of

28

limitations in § 301 actions is the most appropriate state

statute, as determined by the nature of the plaintiff's

action. Plaintiff’s complaint invokes federal question

jurisdiction pursuant to § 301 of the LMRA. While

plaintiff characterizes his action as one for breach of

contract, it is clear that by the very contract which he

invokes, he has agreed that the union be the exclusive

“arbiter” of any contractual grievances he has with the

company. The law is equally clear that plaintiff's

recourse to individual action against the company is

conditioned on founded assertions that the union has

breached its duty of fair representation, and then only

if the union’s conduct toward the employee is

determined to be “arbitrary, discriminatory or in bad

faith.” Vaca v. Sipes, 386 U.S. 517 (1967). Therefore

plaintiff’s action can only be characterized as one based

on a breach of the union’s duty of fair representation.

The Michigan courts have decided that such an action is

subject to the state three-year statute of limitations for

personal injury action. Glowacki v. Motor Wheel Corp.,

67 Mich. App. 448, 241 N.W.2d 240 (1976).

Plaintiff’s action against the union is clearly barred by

the state three-year statute of limitations. W. C.

Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir.

1973); Smart v. Ellis Trucking Co., 409 F. Supp. 129 (E.D.

Mich 1976); Pesoia v. Inland Tool & Mfg. Co., UAW & Its

Local 155, — F.Supp. — (E.D. Mich. 1976).

Moreover, accepting the affidavits submitted by the

defendants as true (as the Court must under the

circumstances) the Court concludes that the plaintiff

failed to exhaust his internal union remedies which

were available to him, and that as the facts are

disclosed here, it is clear that defendant union did not

breach its duty of representation in any fashion, much

less in an arbitrary, discriminatory or bad faith manner.

29

For these reasons the defendants’ motion for

summary judgment are granted and the cause dismissed

with prejudice.

IT IS SO ORDERED.

/s/ Philiz Pratt

United States District Judge

Dated: January 25, 1977

Detroit, Michigan

JUDGMENT

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed January 25, 1977)

(Raymond Gallagher , Plaintiff v. Chrysler Corporation,

International Union, United Auto Workers (UAW) and

its Local Union, 372 UAW, Defendants. No. 670313.)

The above-entitled matter having come on before the

Court upon the defendants’ Motion for Summary

Judgment, and the matter having been duly heard and

considered and the Court having filed its written

Opinion herein,

IT IS ORDERED that defendants’ Motion for

Summary Judgment be and it is hereby granted, and

the plaintiff's complaint be and it hereby is dismissed.

/s/ Philip Pratt

United States District Judge

Dated: January 25, 1977

Detroit, Michigan