Amicus Brief — United Parcel Service, Inc. v. Mitchell

No. 80-169

IN THE

~greme Court of the United States

OCTOBER TERM, 1980

UNITED PARCEL SERVICE, INC.,

Petitioner,

= ar SIE PPPOE Sst

V.

WILLIAM MITCHELL,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE AND BRIEF FOR THE

.1tERNATIONAL BROTHERHOOD OF TEAMSTERS,

AUFPFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA AS AMICUS CURIAE

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

Counsel of Record

WILMA B. LIEBMAN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code (202) 624-6949

Attorneys for the International

Brotherhood of Teamsters,

Amicus Curiae

WILSON - EPES PRINTING Co., INC.

+ 789-0096 - WASHINGTON, D.C. 20001

TTT em,

cet 3 60 }

TABLE OF CONTENTS

MOTION BY THE INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS FOR LEAVE TO FILE A

BRIEF AS AMICUS CURIAE .0.0......cccccceccccccecesceseeeeeee

INTEREST OF THE IBT AND ISSUE TO BE

COVERED IN ITS BRIEF AMICUS CURIAE....

a NNR RTI A OW RIC Se FD

BRIEF FOR THE INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS AS AMICUS CURIAE.........

STATEMENT OF THE CASE ouuooooo coco cccceccceeeeeeees

SUMMARY OF ARGUMENT 000.

he a an” SA RONEN Se OE SAAS E YIP URE

I. THE CHOICE OF THE MOST APPRO-

II.

ITI.

PRIATE STATE STATUTE OF LIMITA-

TIONS TO BE BORROWED FOR § 3801

FAIR REPRESENTATION ACTIONS IS

A MATTER OF FEDERAL LAW ............

A. “Characterization” Of The Action Is

A Federal Law Question ...........

B. Nature Of A § 301 Fair Representation

Action And The Applicable Federal

IIE idisleciictahpecveeabisateenl ee eC aR

A FAIR REPRESENTATION ACTION

FOLLOWING AN ARBITRAL AWARD IS

MOST CLOSELY ANALOGOUS TO AN

ACTION TO VACATE THE AWARD .......

THE CHARACTERIZATION OF A FAIR

REPRESENTTiON SUIT IN DEROGA-

TION OF A FINAL AND BINDING

AWARD AS AN ACTION TO VACATE

THE ARBITRATION AWARD COM-

PORTS WITH FEDERAL POLICY ........

PORTO ics shiiertnceiiinlahcascbauasdldilicutdian walnabsidie

Page

11

11

11

13

15

ii

TABLE OF AUTHORITIES

CASES: Page

Abrams Vv. Carrier Corp., 484 F.2d 1234 (2d Cir.

1970), cert. denied, 401 U.S. 1009 (1971) ......... 7,16

Butler v. Local 823, IBT, 514 F.2d 442 (8th Cir.),

cert. denied, 428 U.S. 924 (19785).................0.000000. 16

De Arroyo Vv. Sindicato Trabajadores Packing-

house, 425 F.2d 281 (1st Cir.), cert. denied, 400

U.S. 877 (1970) ......... hd ca EEN AO ea le 21

Falsetti v. UMW, 355 F.2d 658 (8d Cir. 1966)... 21

Flowers v. Local 2602, United Steelworkers, 105

L.R.R.M. 2299 (W.D.N.Y. 1979), vew’d, 105

L.R.R.M. 2804 (2d Cir. 1980), petition ‘ur certi-

orari filed, No. 80-26 (July 7, 1980) ........0000000..... 17

Ford Motor Co. v. Huffman, 345 U.S. 380 (1953).. 16

Hines v. Anchor Motor Freight, 424 U.S. 554

CE a a passim

Humphrey Vv. Moore, 875 U.S. 385 (1964).............. 14

IUE v. Robbins & Myers, Inc., 429 U.S. 229

RR Neth Rae ASS ae IRAE Bag MRR Oe Re bel BL ee ER 21

Johnson V. Railway Express Agency, 421 U.S. 454

PRI WRN ial natn bidet divas cape Sabon bsaeeaacdicshanpbie 8,12

Liotta v. National Forge Co., 105 " .R.R.M. 26386

OP I: le ecndics 9,17

Local 12, United Rubber Workers, 150 N.L.R.B.

812, enf’d., 368 F.2d 12 (5th Cir. 1966) ............ 21

Miranda F wel Co., 140 N.L.R.B. 181, enf. denied,

Ah Bl, ey Ee | | ene 21

Mohasco V. Silver, 65 L.Ed.2d 582 (1980) ............. 21

Occidental Life Insurance Co. v. EEOC, 482 U.S.

Bg RAISE a Se RSE aR Ey ea 11,12

Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir.

1978), cert. denied, 440 U.S. 958 (1979).............. 17

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

1 RRSIENAAA TEESE ae CEERI OR BENE FLA ca 8

Teamsters Local 174 v. Lucas Flour Co., 369 U.S.

RRR IRR ae AI oR We Be Nn AE 11

Textile Workers v. Lincoln Mills, 358 U.S. 448

(Ra SRE La TE SER e OR 11

UAW \. Hoosier Cardinal Corp., 388 U.S. 696

8 SESTRRS SEES Sara ENN FPR NIT or EEO OEE passim

7%

iii

TABLE OF AUTHORITIES—Continued

Page

United Steelworkers v. American Manufacturing

PU, Me a NE: CRONIES Si ccccuhd accnddecsovssticbatccic keds 8,14

United Steelworkers v. Enterprise Wheel & Car

Corp., 868 U.S. GOB (1960) .........:.....00..cccsccccccesee 14

United Steelworkers v. Warrior & Gulf Navigation

Ss SE, SF ME OD baciocdladosesoncpetcniccdiacensicusdes 14, 15

Vaca Vv. Sipes, 886 U.S. 171 (1967) ..00..0000000... 8, 16, 18, 21

Wolf v. Frank, 477 F.2d 467 (5th Cir.), cert. de-

TOE, BEG AIA. WES CROTON ieiccsscncccccvsccescesscsncsecdeccune 13

STATUTES:

Labor-Management Relations Act of 1947:

ee Nee Me TINE ceuiiresdycitsncniseiiczhubissnssReouesensnes 8

Section 801, 29 U.S.C. § 186 ............................ passim

National Labor Relations Act:

Bag |) ERRAND OS si RNS ORO ee 10, 21

Civil Rights Act of 1964; As Amended:

42 U.S.C. § 20000-5 (c) ......................403.. ali fea 10, 21

Be Us POD hvcicccsicencecccsiciccscccvsoncessccs 10, 21

Ge UG in BEE CBD Sisleccccccccivvescccccccecccoares 10, 21

New York Civil Practice Laws:

> ARREST GSE coe RS Rape CN) Ds ROE AS 7

A) ORIEN is OR emake eRe Pe Noe 6,9, 17,19

MISCELLANEOUS:

Characteristics of Major Collective Bargaining

Agreements, July 1, 1975, BLS Bull. 1957

So nee RIALS 2 IAIN py EE TE OPT bt 0 Rhoda 2

Filing of an Employment Discrimination Charge

Under Title VII as Tolling the Statute of Limi-

tations Applicable to a 1981 Action: The Un-

answered Questions of Johnson Vv. REA, 26 Case

Te ee IY MI MUI ois colecinsiactuallcccssdentesciaiienes 12

lia i

iv

TABLE OF AUTHORITIES—Continued

GS Cobemm. T. Baw. GB (10GB) nos cccsccsccscccscdecseccoasce 12

Mishkin, The Variousness of “Federal Law”:

Competence and Discretion in the Choice of

National and State Rules for Decisions, 105

U. Pe. &. Rov. TOF C1007? 2... 12

44 Geo. Wash. L. Rev. 418 (1976) 000000000000. 16

“State Statutes of Limitations As Affecting Fed-

eral Civil Rights Actions Under 42 U.S.C.

§ 1981,” 29 ALR Fed. 710 (1976) ........000.00000000... 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-169

UNITED PARCEL SERVICE, INC.,

Petitioner,

Vv. \

WILLIAM MITCHELL,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

MOTION BY THE INTERNATIONAL BROTHER} OOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA FOR LEAVE TO FILE

A BRIEF AS AMICUS CURIAE

The International Brotherhood of Teamsters (IBT)

hereby moves for leave to file a brief as amicus curiae

arguing chat the decision of the United States Court

of Appeals for the Second Circuit which this Court has

agreed to review (49 U.S.L.W. 3264), was wrongly de-

cided. William Mitchell, the Respondent, has denied his

consent to the filing of said brief.

2

INTEREST OF THE IBT AND ISSUE TO BE

COVERED IN ITS BRIEF AMICUS CURIAE

The IBT is an international union comprised of 752

affiliated local unions, including Teamsters Local 177,

a defendant below and a respondent before this Court.

The collective membership of the IBT’s affiliates totals

approximately 1.9 million working men and women.

Some 80,000 to 100,000 different collective bargaining

agreements cover Teamster-represented employees in this

country. Consistent with recent trends in collective bar-

gaining,’ most of these agreements contain procedures

for grievance resolution, including the arbitration of dis-

putes over the meaning and application of agreements

dealing with wages, hours and terms or conditions of

employment.

As a spokesman for a large segment of organized labor,

the IBT has a continuing interest in the development of

a principled body of law regarding the arbitral enforce-

ment of collective agreements and the obligation of rep-

resentatives in regard thereto. In our view, the lower

court’s decision in this case contravenes federal policy

favoring final and binding arbitration as a means of

labor dispute resolution. It also conflicts with federal

policy preferring a speedy resolution of labor disputes.

We believe that it will aid the Court in its deliberation

to have a succinct statement of why that is so. The

function of the accompanying brief amicus curiae is to

provide such a statement.

1 See, e.g., Characteristics of Major Collective Bargaining Agree-

ments, July 1, 1975, BLS Bull. 1957, at 94 (1977) (less than 4%

of 1,514 major agreements surveyed do not contain arbitration

provisions).

3

CONCLUSION

For the above stated reasons, this motion for leave to

file a brief of amicus curiae should be granted.

Respectfully submitted,

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

Counsel of Record

WILMA B. LIEBMAN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code (202) 624-6949

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-169

UNITED PARCEL SERVICE, INC.,

Petitioner,

A

WILLIAM MITCHELL,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR THE INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

This brief amicus curiae is filed by the International

Brotherhood of Teamsters (IBT) contingent on the grant-

ing of the foregoing motion for leave to file a brief as

amicus curiae.

_ PREVIOUS PAGE WAS BLANK |

a ——“__

6

STATEMENT OF THE CASE

This employee action, brought against an employer

and a union, seeks to relitigate a claim of wrongful dis-

charge previously decided adversely to the employee by

an arbitral panel convened pursuant to the collective

bargaining agreement’s grievance arbitration procedures."

Under that agreement, the arbitral decision was final and

binding. But the suit alleges that, contrary to the ar-

bitration decision, the discharge complained against was

in violation of the contract, and that the union’s failure

to represent the employee fairly at the arbitration hear-

ing contributed to the erroneous outcome. This action,

filed under § 301 of the Labor-Management Relations

Act, 29 U.S.C. § 185, is one envisioned by Hines v. Anchor

Motor Freight, 424 U.S. 554 (1976).

The sole issue presented here relates to the appropriate

statute of limitations to be applied to a § 301 action

alleging unfair representation which is filed after an

arbitration decision has been rendered.

Characterizing this action as one to vacate an ar-

bitral award, the district court applied New York’s 90-

day limitation on such suits (N.Y. Civ. Prac. § 7511

(McKinney, 1963) )* and dismissed the complaint filed

more than 17 months after the arbitral decision had

issued. Justifying its holding, the court noted that “[t]he

policy favoring ‘relatively rapid disposition of labor dis-

putes’ . . . combines in this case with the policy favoring

arbitration as a means of securing a quick and final

resolution of disputes in general.” (Pet., at 3a)

!'The Employer is United Parcel Service, and the Union is De-

partment Store and Wholesale Drivers, Warehousemen and Helpers,

Local Union No. 177.

2 Section 7511 provides: “An application to vacate or modify an

award may be made by a party within 90 days after its delivery

to him.”

z

The United States Court of Appeals for the Second

Circuit disagreed with the district court’s characteriza-

tion, although it acknowledged that the “ ‘effect of a

judgment for [the discharged employee] would be to

nullify the arbitral decision’. . .” (Pet., at 12a). In re-

versing, it held that New York’s six-year limitation on

breach of contract actions (N.Y. Civ. Prac. § 213(2)

(McKinney, 1972) ) was applicable. The court of appeals

perceived no difference for statute of limitations pur-

poses between § 301 actions where the grievance has not

been taken to arbitration and those where an arbitra-

tion decision has been issued. In its view, “such a frac-

tionalized approach to § 301 wrongful discharge actions”

is not warranted.®

Accordingly, the court of appeals rejected the district

court’s reasoning that the federal policy favoring finality

of arbitration awards dictated the application of a

shorter limitation period in this type of § 301 action.

Rather it beli¢éved that employees’ rights vis-a-vis their

employers and unions prevailed in this instance over the

federal policy favoring arbitration, reasoning that a 90-

day limitation would severely restrict those rights and

unnecessarily add to the already stiff burden a plaintiff

faces. Further, it held that a six-year period adequately

furthers the federal goal of relatively rapid disposition

of labor disputes, relying on UAW v. Hoosier Cardinal

Corp., 383 U.S. 696, 707 (1977).

We submit that the holding of the court of appeals

misconstrues the decisions of this Court in Hines and

Hoosier Cardinal, and contravenes established federal

policy favoring final and binding arbitration and the

speedy resolution of labor disputes. Moreover, it ignores

the basic nature of this lawsuit.

’ The court relied on its previous decision in Abrams v. Carrier

Corp., 434 F.2d 1234 (2d Cir. 1970), cert. denied, 401 U.S. 1009

(1971), wherein it held the six-year limitation applicable to

§ 301 breach of contract and unfair representation claims in a case

where the union had not taken the grievance to arbitration.

8

SUMMARY OF ARGUMENT

Section 301 of the Labor-Management Relations Act,

29 U.S.C. § 185, contemplates suits by employees, as

well as suits by and against employers and labor organi-

zations. Smith v. Evening News Ass’n, 871 U.S. 195

(1962). An employee can maintain suit against his

union for breach of the duty of fair representation, and

against his employer for breach of contract, in one ac-

tion. Hines v. Anchor Motor Freight, 424 U.S. 554

(1976) ; Vaca v. Sipes, 386 U.S. 171 (1967). Because

there is no federal statute of limitations governing § 301

actions, the timeliness of such suits is controlled, as a

matter of federal law, by the most appropriate state

statute of limitations. UAW v. Hoosier Cardinal Corp.,

383 U.S. 696 (1977).

In selecting the most appropriate state statute of

limitations, a federal court must characterize the action,

taking into account the elements of a Hines § 301 suit

and applicable federal policies. State characterization

principles, to the extent they conflict with important fed-

eral policies, must be disregarded. UAW v. Hoosier

Cardinal Corp., swpra, 383 U.S. at 706. See also, John-

son V. Railway Express Agency, 421 U.S. 454, 465

(1975). Congress has declared as a paramount federal

policy the promotion of industrial peace through the

quick and final adjustment of labor disputes by arbitra-

tion. 29 U.S.C. § 173(d) ; United Steelworkers v. Ameri-

can Mfg. Co., 363 U.S. 564 (1960). Suits complaining

of unfair representation in the arbitration process serve

to safeguard individual interests. Yet, by lifting the bar

of the collective bargaining agreement’s finality pro-

vision, and by postponing the resolution of labor disputes,

their maintenance is at odds with important federal

policies favoring speedy and final arbitral resolutions.

These competing interests must be accommodated by

adoption of a cohesive limitations policy.

9

A fair representation action following an arbitral

award is most closely analogous to an action to vacate

the award. On this basis, New York’s 90-day limitation

is applicable to the instant action. N.Y. Civ. Prac.

§ 7511. This result is supported, first, by a realistic ap-

praisal of the object of the plaintiff’s suit, and second,

by a balancing of the relevant collective and individual

interests involved here. Obviously, the plaintiff seeks to

relitigate before the district court the same claim he lost

in arbitration, namely the challenge to his discharge,

and a judgment in his favor would be tantamount to

vacating the arbitrator’s decision. Liotta v. National

Forge Co., 105 L.R.R.M. 2686 (3d Cir. 1980). Fur-

thermore, the central issue in this case is not the em-

ployer’s alleged breach of contract, but whether the “final

and binding” provision of the labor agreement’s arbitra-

tion article is to be given conclusive effect. Hines v.

Anchor Motor Freight, supra, 424 U.S. at 567, 569.

This is but another way of asking whether the award

should be vacated.

Borrowing New York’s 90-day limitation applicable

to suits to vacate arbitral awards for purposes of Hines

§ 301 fair representation cases better accommodates com-

peting collective and individual interests than the State’s

extended six-year limitation for breach of contract ac-

tions. The former limitation promotes the use of arbitra-

tion by foreclosing seriously delayed challenges to ar-

bitration awards. This is the purpose of N.Y. Civ. PRAC.

§ 7511, which is consistent with federal labor policy, and

there is no apparent unfairness in limiting fair rep-

resentation suits to the same 90-day period within which

employers and unions are obligated to secure review or

enforcement of arbitral awards.

On the other hand, the six-year limitation all but

ignores Congress’ preference for the speedy and final

resolution of labor disputes. In this regard, the six-

10

year limitations period leaves questions of contract in-

terpretation and administration uncertain for an unrea-

sonable duration, thus tending to frustrate the smooth

functioning of the collective bargaining system. An ex-

tended limitations period may also prejudice employee

contractual rights, either by delaying the general ap-

plication of arbitral interpretations until the limitations

period has run, or by disrupting employee expectations

that have long been settled through arbitration.

No manifest injustice results to employee rights from

the choice of Lune 90-day limitations period prescribed by

New York law. In both the National Labor Relations

Act, 29 U.S.C. §160(b), and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-5(e), (f) (1),

Congress opted for short limitations periods to encour-

age the prompt processing of unfair labor practice and

employment discrimination charges. Measured against

these analogous standards, it is apparent that Hines

§ 801 rights are not compromised by the characterization

of this action as one to vacate an arbitral award. Ninety

days from delivery of the arbitral award is an adequate

time in which to file a § 301 suit, thus preserving Hines

rights, but is not so unduly long as to jeopardize the

stability of the collective bargaining process.

11

ARGUMENT

I. THE CHOICE OF THE MOST APPROPRIATE

STATE STATUTE OF LIMITATIONS TO BE BOR-

ROWED FOR A §301 FAIR REPRESENTATION

ACTION IS A MATTER OF FEDERAL LAW.

A. “Characterization” Of The Action Is A Federal

Law Question.

Because there is no federal statute of limitations gov-

erning § 301 breach of contract or fair representation

actions, the timeliness of such suits is controlled, as a

matter of federal law, by the most appropriate state

statute of limitations. UAW v. Hoosier Cardinal Corp.,

supra, 383 U.S. at 704-05.4 A federal court’s first task

in selecting the appropriate state limitations period is

to characterize the lawsuit. “The characterization of this

action . . . is ultimately a question of federal law.” UAW

V. Hoosier Cardinal Corp., supra, 383 U.S. at 706.5

While the courts may in the first instance look to the

state law characterization, that characterization should

be rejected if it is “unreasonable or otherwise incon-

sistent with national labor policy.” UAW v. Hoosier

Cardinal Corp., swpra, 383 U.S. at 706.

*State statutes have frequently been held applicable to other

federal causes of action where no limitations provision is stated

in the federal act. See cases cited in Johnson V. Railway Express

Agency, 421 U.S. 454, 462 ( 1975). But see, Occidental Life Insur-

ance Co. V. EEOC, 482 U.S. 355 866-372 (1977).

5In Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957), the

Supreme Court held that in § 801 suits courts must apply federal

substantive iaw which should be fashioned by the courts in accord-

ance with national labor policy. Although state law consistent with

the purpose of § 301 may be used in formulating rules to be applied,

the source of private rights is solely federal. 353 U.S. at 457.

Also, incompatible doctrines of local law must give way to prin-

ciples of federal labor law. Tteamsters Local 174 V. Lucas Flour

Co., 369 U.S. 95 (1962).

12

More recently, this Court stated in Johnson v. Railway

Express Agency, supra, 421 U.S. at 465:

“Although state law is our primary guide in this

area, it is not, to be sure, our exclusive guide.

As the Court noted in Auto Workers v. Hoosier

Corp. . . . considerations of state law may be dis-

placed where their application would be inconsistent

with the federal policy underlying the cause of ac-

tion under consideration.” °

Then, in Occidental Life Ins. Co. v. EEOC, supra, 432

U.S. at 367, this Court held:

“But the Court has not mechanically applied a state

statute of limitations simply because a limitations

period is absent from the federal statute. State leg-

islatures do not devise their limitation periods with

national interests in mind, and it is the duty of the

federal ~ourt to assure that the importation of state

law will not frustrate or interfere with the imple-

mentation of national policies. ... State limitations

periods will not be borrowed if their application

would be inconsistent with the underlying policies

of the federal statute.” ’

While the Hoosier Court did rely on state limitations

provisions, rather than adopting a uniform § 301 limita-

tions period, it further contemplated the application of

federal law to subsidiary issues which arise in deter-

mining appropriate limitations periods.* As the Fifth

6 See, Note, Filing of an Employment Discrimination Charge

Under Title VII As Tolling the Statute of Limitations Applicable

to a 1981 Action: The Unanswered Questions of Johnson v. REA,

26 Case W. L. Rev. 889, 903-904 n.77 (1976).

7 See also, Mishkin, The Variousness of “Federal Law’: Com-

petence and Discretion in the Choice of National and State Rules

for Decisions, 105 U. of Pa. L. Rev. 797, 805 (1957).

8 One commentator has stated that federal courts are “well situ-

ated to write federal law” on such subsidiary issues. 58 Colum.

L. Rev. 68, 72 (1953).

13

Circuit has held: “federal courts borrow only the

chronometric aspects and not the procedural or substan-

tive nuances of the law of the forum.” Wolf v. Frank,

477 F.2d 467, 475 (5th Cir.), cert. denied, 414 U.S. 975

(1973). Manifestly, in characterizing the action for pur-

poses of borrowing the most appropriate state statute of

limitations, federal common law is controlling. State ©

characterization principles may be applied only to the

extent they are consistent with national labor policy.

B. Nature Of A §301 Fair Representation Act And

The Applicable Federal Policies.

The “characterization” process necessarily requires

recognition of the elements of a fair representation ac-

tion, in the context of each case’s particular factual cir-

cumstances, and an understanding of the federal labor

policies which inform the choice of a state limitations

period. In Hines v. Anchor Motor Freight, supra, 424

U.S. 554, this Court viewed the case as one in which

the bar of the collective bargaining agreement’s provision

for “final and binding” arbitration would be removed,

if the integrity of the arbitral process had been seriously

undermined by the union’s breach of its fair representa-

tion duty. Id. at 567.

“To prevail against either the company or the

Union, petitioners must show not only that their

discharge was contrary to the contract but must

also carry the burden of demonstrating breach of

duty by the Union... .” [Id. at 570.]

In so holding, the Court made clear that the bar of

the finality provision is not to be lightly removed, since

it “has sufficient force to surmount occasional instances

of mistake.” Jd. at 571. Nor can the plaintiff in a

Hines case prevail by simply “demonstrating mere er-

rors in judgment”; dishonest, bad faith or discrimina-

tory union conduct must be shown. Otherwise, even if

14

the arbitrator has erred, the contract’s finality pro-

vision is to be enforced. It is apparent, therefore, that

a fair representation action is in the nature of an ex-

ception to the ordinary rule mandating the speedy and

final disposition of labor disputes through arbitration.

Ultimately, it serves as a safeguard for individual, as

opposed to collective, interests should operation of the

contractual machinery fall below a minimum level of

integrity.

Thus perceived, the fair representation action is with-

in the framework of the national labor policy, and it

must be harmonized with other, equally important labor

objectives. Of these competing policies, none is more im-

portant than the congressionally declared policy of pro-

moting industrial peace through the quick and final ad-

justment of labor disputes by a method agreed upon by

the parties.* As repeatedly recognized by this Court,’

grievance arbitration is the key to realization of that

policy. Arbitral interpretations of the collective bargain-

ing agreement furnish a body of private law—‘the law

of the shop’”—which guides the parties in their continu-

ing relationships. In this sense, then, arbitration lies at

the heart of the system of industrial self-government

created by collective bargaining. But the goal of peaceful

dispute settlement will be actualized only if all those

concerned—employer, union, and employee—are assured

® Labor-Management Relations Act of 1947, 29 U.S.C. § 178(d)

provides: “Final adjustment by a method agreed upon by the

parties is hereby declared to be the desirable method for settle-

ment of grievance disputes arising over the application or interpre-

tation of an existing collective bargaining agreement.”

10 See, United Steelworkers v. American Mfg. Co., 863 U.S. 564

(1960) ; United Steelworkers v. Warrior & Gulf Navigation Co.,

863 U.S. 574 (1960) ; United Steelworkers v. Enterprise Wheel &

Car Corp., 8368 U.S. 598 (1960) ; Humphrey v. MBbre, 875 U.S. 885

(1964); Hines v. Anchor Motor Freight, supra, 424 U.S. at 662-

63.

J

15

that arbitrators’ rulings once rendered are truly final and

binding."

A further goal of national labor policy, as this Court

has announced, is the “relatively rapid disposition of

labor disputes.” UAW v. Hoosier Cardinal Corp., supra,

383 U.S. at 707. Speed, like finality, is among the im-

portant federal interests advanced by private dispute

settlement mechanisms. Both of these interests advance

the collective objectives of all bargaining unit employees.

Yet, they are necessarily at odds with the right of an indi-

vidual employee to secure a judicial redetermination of his

or her “shop” rights in those exceptional situations where

arbitration proceedings are tainted by breach of the duty

of fair representation. To state that important collective

interests collide with individual interests at this juncture,

however, is simply to recognize the problem. The critical

question is how these competing interests are to be ac-

commodated. We submit that accommodation can best

be achieved in Hines § 301 cases by adoption of state

limitations periods applicable to actions to vacate arbitral

awards.

II. A FAIR REPRESENTATION ACTION FOLLOWING

AN ARBITRAL AWARD IS MOST CLOSELY

ANALOGOUS TO AN ACTION TO VACATE THE

AWARD.

The court below erroneously held that categorizing this

action as one to vacate an arbitral award was precluded

by New York state law under which an employee has no

standing to file such a lawsuit. This conclusion im-

properly incorporates state standing principles into a

1 In accordance with the preference for arbitration, this Court

has established a policy of judicial deference to arbitrator’s awards,

viewing the arbitrator as better equipped than a judge to adjust

labor management difficulties. United Steelworkers v. Warrior &

Gulf Navigation Co., supra, 368 U.S. at 582. Thus, judicial review

of arbitral decisions is quite limited

<

16

§ 301 action. Clearly § 801, as interpreted by this Court,

furnishes the requisite standing for an employee to sue.’

The only gap in § 801 is the omission of a time limit

for the filing of suit. Accordingly, as noted above, all

that need be borrowed from New York law is the

“chronometric aspect” of the state statute of limitations

and not all of the subsidiary nuances of that law.

The characterization of fair representation actions

where there has been no arbitration has divided the

Circuits. Some courts have identified them as breach

of contract actions, while others have viewed them as

tort actions. See, e.g., Butler v. Local 823, IBT, 514 F.2d

442, 447 (8th Cir.), cert. denied, 423 U.S. 924 (1975);

44 Geo. Wash. L. Rev. 418 (1976). Those courts which

have adopted the breach of contract label have often done

so because of the close relationship between the breach

of contract claim against the employer and the unfair

representation claim against the union, together with the

convincing need for parallel limitations. That is the

approach of the Second Circuit Court of Appeals. See,

Abrams v. Carrier Corp., supra, 434 F.2d at 1251-53.

However cases where there has been no arbitration have

been characterized, we submit that a different rule is

warranted where a “final and binding” arbitration

award has been rendered.

The § 301 suit in Hoosier Cardinal, which did not in-

volve an arbitration or a fair representation claim, was

categorized by the Court, in conformity with state law,

as one for breach of an oral contract. Nonetheless, the

Court acknowledged the existence of a variety of § 301

actions:

“Whether other § 301 suits different from the pres-

ent one might call for the application of other rules

12 Hines Vv. Anchor Motor Freight, supra, 424 U.S. 554; Vaca v.

Sipes, 386 U.S. 171 (1967); Smith v. Bvening News Ass’n, 871

U.S. 195 (1962) ; Ford Motor Co. v. Huffman, 345 U.S. 330 (1958).

17

on timeliness we are not required to decide and we

indicate no view whatsoever on that question.” [Jd.

at 704 n.7.]

Thus, contrary to the court below, the Supreme Court

clearly envisioned a “fractionalized approach” to deter-

mine timeliness in § 301 actions, dependent on the pre-

cise character of the particular action. Accordingly, ap-

plication of different statutes of limitations in unfair

representation actions, depending on whether there has

been an arbitration award, is reasonable.”

In our view, this action is most appropriately char-

acterized under federal law as one to vacate an arbitral

award; N.Y. Civ Prac. § 7511’s 90-day limitation should

thus apply. This result seems obvious. Liotta v. Na-

tional Forge Co., 105 L.R.R.M. 2686 (8d Cir. 1980) ."*

The plaintiff is seeking to relitigate before the district

court the same claim he lost before the arbitral panel,

namely the challenge to his discharge. Dissatisfied with

the result of the arbitration, he seeks to upset the arbi-

trator’s decision. Indeed, the Court below conceded that

a judgment in the plaintiff’s favor would be tantamount

to vacating the arbitration decision. Moreover, this

characterization is conceptually sound. For were not this

action viewed as one to vacate the award, plaintiff’s

success before the district court on his discharge claim

8The courts have employed a “fractionalized approach” in

other federal causes of action which rely on state limitations pro-

visions, dependent on the nature of the relief sought. See, e.g.,

“State Statutes of Limitations As Affecting Federal Civil Rights

Actions Under 42 U.S.C. § 1981,” 29 ALR Fed. 710 ( 1976).

4A significant number of district courts have adopted this

characterization, including the district court in this case and in

Flowers v. Local 2602, United Steelworkers, 105 L.R.R.M. 2299

(W.D.N.Y. 1979), rev’d, 105 L.R.R.M. 2804 (2d Cir. 1980), petition

for certiorari filed, No. 80-26 (July 7, 1980). See, cases cited in

Petition at 13 nn.8 and 9. Contra, Smart v. Ellis Trucking Co., 580

F.2d 215 (6th Cir. 1978), cert. denied, 440 U.S. 958 (1979),

7%

18

would subject the employer to two conflicting decisions:

the award of the arbitrator upholding the discharge and

tie judgment of the district court invalidating the dis-

charge.

Further, it is clear that under Hines, contrary to the

court of appeals’ conclusion, the gravamen of this § 301

action—indeed, its threshold issue—is whether an other-

wise “final and binding” arbitral decision may be at-

tacked because of the union’s failure to represent the

plaintiff fairly at the arbitration proceeding. Evidence

sufficient to prove the union’s breach of its duty must be

submitted before the breach of contract claim against

the employer may be entertained. Thus, the conclusion

of the court of appeals that Hines requires that this suit

be characterized as one for breach of contract is errone-

ous. For the central issue in this case, as framed by

Hines, is not the employer’s alleged breach of contract,

but whether the “final and binding” provision of the

collective bargaining agreement’s arbitration article is to

be given conclusive effect.’ In other words, may the

award be vacated? '*

15 Similarly inaccurate is the conclusion of the lower court that

this § 301 suit is procedurally distinct from an action to vacate

an arbitral award since § 301 is independent of the grievance

process. A Hines action is clearly not independent of the grievance

process as it may be brought only if adequate grounds are proven

for lifting the finality provisions of the contract. See, e.g., Hines

v. Anchor Motor Freight, Inc., supra, 424 U.S. at 566; Vaca Vv.

Sipes, supra, 386 U.S. at 186.

In his dissent in Hines, supra, 424 U.S. at 576, Justice

Rehnquist expressed the view that under the Uniform Arbitration

Act, in use in many states, unfair representation was not one of

the permissible grounds for vacating an arbitration award. The

majority opinion, while obviously disagreeing with his belief that

unfair representation was not a proper basis for vacating an

award, nonetheless did not dispute his characterization of the

lawsuit.

19

Ill. THE CHARACTERIZATION OF A FAIR REPRE-

SENTATION SUIT IN DEROGATION OF A FINAL

AND BINDING AWARD AS AN ACTION TO VA-

CATE THE ARBITRATION AWARD COMPORTS

WITH FEDERAL LABOR POLICY.

Borrowing New York’s 90-day limitation applicable

to suits to vacate arbitral awards for purposes of Hines

§ 801 fair representation cases better accommodates com-

peting collective and individual interests than the State’s

extended six-year limitation for breach of contract ac-

tions. The former limitation promotes the use of arbi-

tration by foreclosing seriously delayed challenges to

arbitration awards. This is the purpose of N.Y. Civ.

Prac. § 7511, which is consistent with federal labor pol-

icy, and there is no apparent unfairness in limiting fair

representation suits to the same 90-day period within

which employers and unions are obligated to secure re-

view or enforcement of arbitral awards. On the other

hand, the six-year limitation all but ignores Congress’

preference for the speedy and final resolution of labor dis-

putes. Consequently, it detracts from the attractiveness,

convenience and economy of arbitration as the preferred

means of settling labor disputes.

The six-year limitations period leaves questions of

contract interpretation and administration uncertain for

an unreasonable duration. Arbitration decisions provide

guidance as to the meaning of contract terms and aid

the parties to the agreement in carrying out their con-

tractual rights and duties. If the validity of those de-

cisions is vulnerable to attack for six years, the parties

may be hesitant to make broad changes in their opera-

tions or conduct to conform with the decision, for they

cannot be sure that the award will survive as the “law

of the shop.” Moreover, since six years outlasts the

duration of any collective bargaining agreement, negoti-

ations for new agreements may be confused by doubt as

20

to the meaning of the old. In sum, characterization of

this lawsuit as one for breach of contract would neces-

sarily frustrate Congress’ effort to promote the smooth

functioning of the collective bargaining system.

Additionally, such a characterization would prejudice

employees whose rights the arbitral awards concern.

Grievances often affect not simply one employee, as in

this case, but a large group. Decisions regarding, for

example, seniority rights have potentially far-reaching

consequences for a bargaining unit. The union and em-

ployer may decline to implement such decisions fully for

fear that an unsatisfied employee will sometime in the

future challenge the results. In consequence, some em-

ployees may suffer loss of benefits. Or if the decision is

implemented, and then later held invalid, employee ex-

pectations will be significantly disrupted. Surely, the

interests of all concerned are furthered by a quick

arbitral resolution and the finality of arbitral awards.

The complications which will arise in matters of contract

interpretation, administration, and negotiations if a six-

year limitation period is adopted serve to highlight the

distinction between this case and one in which there has

been no arbitral award. For these particular difficulties

arise only when an award has been rendered.

Thus, while this Court in Hoosier Cardinal, supra, 383

U.S. at 707, approved the borrowing of a six-year

statute of limitations as adequately furthering the goal

of “relatively rapid disposition of labor disputes,” that

case was quite different from this one. There the Court

was faced with a choice between a six-year and 20-year

limitation. More importantly, the case was strictly one

for breach of contract and involved no attempt to vacate

an arbitral award. This distinction is crucial given fed-

eral policy favoring final and binding arbitral awards.

Moreover, Hoosier Cardinal still reflects a “distinct pref-

erence for the shorter statute of limitations where the

21

question of characterization is a close one and no mani-

fest injustice results from such a choice.” *7

No manifest injustice results to employees’ rights

from the choice of the 90-day period herein. Under the

National Labor Relations Act, 29 U.S.C. §$ 160(b), the

time limit for the filing of unfair labor practice charges

is six months. Particularly since an alleged breach of

the union’s duty of fair representation may also be

cognizable as an unfair labor practice,'* the 90-day period

cannot be viewed as unusually short."® Also, under Title

VII of the Civil Rights Act of 1964, as amended in 1972,

an employee must file unfair employment practice charges

with the EEOC within 180 days of the discrimination

complained against, or within 240 days of the discrimina-

tory event if the charge is to be deferred to a state fair

employment practice agency. After receipt of a right-to-

sue letter from EEOC, the employee must file suit in

district court within 90 days. 42 U.S.C. § 2000e-5(c),

(e) and (f) (1). These time limits are strictly enforced.

IUE *. Robbins & Myers, Inc., 429 U.S. 229 (1976) ;

Mohasco V. Silver, 65 L.Ed.2d 582 (1980).

As this Court noted in Mohasco, supra, 65 L.Ed.2d

at 543, 548 (footnotes omitted) :

“time limitations are inevitably arbitrary to some

extent; and the limitations at issue here are not so

short that a plaintiff’s remedy is effectively denied

for all practical purposes without an opportunity for

a hearing.

17 See, e.g., De Arroyo v. Sindicato Trabajadores Packinghouse,

425 F.2d 281, 287 (1st Cir.), cert. denied, 400 U.S. 877 (1970).

18 See, e.g., Vaca V. Sipes, supra, 386 U.S. 171; Miranda Fuel Co.,

140 N.L.R.B. 181, enf. denied, 326 F.2d 172 (2d Cir. 1963) ; Local

12, United Rubber Workers, 150 N.L.R.B. 312, enf'd., 368 F.2d 12

(5th Cir. 1966).

1° Cf. Falsetti v. UMW, 855 F.2d 658, 662 (8d Cir. 1966).

7%

-y

22

By choosing what are obviously short deadlines,

Congress clearly intended to encourage the prompt

processing of all charges of employment discrim-

ination. .. .”

Certainly the public policy favoring equal employment

opportunity is as fundamental as that favoring fair

representation. If an employee has only 90 days after

receipt of a right-to-sue letter to obtain counsel and file

suit, then fairness requires no more in the instant case.

Hines rights are not compromised by the characteriza-

tion of this § 301 action as one to vacate an arbitral

award. That characterization best effectuates and bal-

ances the conflicting policy interests at stake. Ninety

days from delivery of the arbitral award ™ is an adequate

time in which to file a § 301 suit, thus preserving Hines

rights, but is not so unduly long as to jeopardize the

stability of the collective bargaining process. The argu-

able burden of prompt filing, which the 90-day limitation

imposes, is consistent with the unique nature of fair

representation actions. This Court did not intend to es-

tablish an alternate judicial forum for the enforcement

of collective bargaining agreements in declaring an em-

ployee’s right to seek redress from a union’s unfair rep-

resentation at an arbitration hearing. Instead, the cause

of action was reserved for exceptional situations, and

legitimate individual interests will not be harmed by re-

quiring that it be asserted promptly.

20 Forty-two states have enacted special statutes of limitations

governing actions to vacate arbitration awards. In 28 of these

states, the prescribed time limit is 90 days.

Contrary to the statement of the Court below (Pet., lla), the

90 days run from delivery of the award, not from the date of the

employee’s discharge.

23

CONCLUSION

For the foregoing reasons, the decision of the Court

of Apteals for the Second Circuit should be reversed and

the case remanded for entry of an order affirming the

district court’s grant of summary judgment dismissing

the complaint as barred by the 90-day limitations period

on actions seeking to vacate arbitral awards.

Respectfully submitted,

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

Counsel of Record

WILMA B. LIEBMAN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code (202) 624-6949

Attorneys for the International

Brotherhood of Teamsters,

Amicus Curiae