Record and brief — Davidson v. Roadway Express, Inc.
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81-1201 vstee
DEC 23 1981
ALEXANDER L. STEVAS,
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
No.
JOSEPH A. DAVIDSON,
Petitioner,
v.
ROADWAY EXPRESS, INC.,
Respondent.
me
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
MORTON E. SCHNEIDER
ANN CURRY THOMPSON
MICHAEL L. PITT
KELMAN, LORIA, DOWNING,
SCHNEIDER & SIMPSON
2300 First National Building
Detroit, MI 48226
(313) 961-7363
STEPHEN LAUDIG
RYNEARSON, LAUDIG &
MUSSER
1810 East 62nd Street
Indianapolis, Indiana 46220
(317) 257-5391
Counsel for Petitioner
Dated: December 26, 1981.
ee
THE INLAND PRESS, DETROIT, MICHIGAN
QUESTION PRESENTED
Whether the Court of Appeals for the Seventh Circuit erred
in applying United Parcel Service, Inc. v. Mitchell, 101 S. Ct.
1559 (1981), to time bar the petitioner's claim after the trial
court had entered judgment in his favor.
Page
I aca Code Se. s pdandebGianeecdbhae l
ee te CEi Ls Sci acens dan sadvaetnent l
EET ERE es er 2
Statutory provisions involved ..................0-000: 2
FFE REE OE EC EEE OTT EPO 2
Reasons for granting the writ .................00e000 5
1. There Is A Conflict Among The Decisions Of The
Courts Of Appeals And The District Courts Re-
garding The Retroactive Application Of United
States Parcel Service, Inc. v. Mitchell.
2. The Retroactive Application of United Parcel Service,
Inc. v. Mitchell, Is An Important Question Of
Federal Law Which Has Not Been Decided But
Should Be Decided By This Court In Light Of The
Criteria Set Forth In Chevron Oil v. Huson.
3. Assuming Arguendo That United Parcel Service, Inc.
v. Mitchell Is To Be Applied Retroactively, The
Most Appropriate State Statute Of Limitations Is
The Indiana Two Year Statute Of Limitations Gov-
erning Employment Agreements.
OILS POSE EERO. POPE T
i cee ia ss pcan dens eeecdusdenen
ii
CITATIONS
Cases:
Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970),
cert. denied 401 U.S. 1009 (1971) ...............0.. 12
Allen v. Amalgamated Transit Union, 415 F. Supp. 662
(D.C. Mo. 1976), affd in pertinent part and remanded
in part, 554 F.2d 876 (8th Cir. 1976), cert. denied, 434
8 RF ree Serre ee re ry 12
Allen v. McWilliams Electric Co., 494 F. Supp. 53 (N.D.
MEE BSAC Ue V eke eh ccecednsssesdngesideteseses 12
Brain v. Roadway Express, Inc., No. C 80-2338 (N.D.
I ss ae cad pees ewn Ge Sie 7
Brown v. Louisiana, 477 U.S. 323 (1980) ............. 8, 14
Bruton v. United States, 391 U.S. 123 (1968) .......... 14
Buchholtz v. Swift & Co., 62 F.R.D. 581 (D. Minn. 1973) 12
Burch v. Louisiana, 441 U.S. 1306 (1979) .............. 14
Butler v. International Brotherhood of Teamsters, 514
F.2d 442 (8th Cir.), cert. denied 423 U.S. 924 (1975) .. 12
Carpenters & Millwrights Health Ben. Trust Fund v.
Domestic Linen Insulation Co., 387 F. Supp. 144 (D.
EE Es es NE Leena guinee ieee 12
Cheese v. Afram Bros Co., 32 Wis. 2d 320, 145 N.W.
CRETE ON OTE Ree 12
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .6, 8, 9, 11, 13, 17, 18
Coleman v. Kroger Co., 399 F. Supp. 724 (D.C. Va. 1975) 12
Daniel v. Louisiana, 420 U.S. 31 (1975) ............... 8
De Arroyo v. Sindicato de Trabajadores Packinghouse, 425
F.2d 281 (Ist Cir. 1979), cert. denied 400 U.S. 877
(1970), reh. denied 400 U.S. 953 (1975) ............. 12
Del Costello v. Anchor Motor Freight, No. J-78-436 (D.
NS es er re 7
Desist v. United States, 395 U.S. 244, reh. denied 395
I, Sa eae abe hehe 8
Falsetti v. United Mine Workers, 355 F. 2d 658 (3d Cir.
RE RE, PPT OTe T re ery Prope Fe 12
Grant v. Mulvihill Bros. Motor Service, Inc., 428 F. Supp.
EE So Vida wwhin-ec'c cde c¥cweavudevesere 12
International Union (UAW) v. Hoosier Cardinal Corp.,
ke 0 ee 4, 10, 11, 13, 17, 19, 20
Kaufman & Broad Home Systems, Inc. v. International
Brotherhood of Firemen & Oilers, 607 F.2d 1104 (5th
i Stee eee ac ane nd obereekhsee ene 12
Kennard vy. United Parcel Service, No. 81-70156 (E.D.
i a eee ccdedesgsvetvensatennene’ 6, 16
Kikos v. Nu-Car Driveaway Co., No. 78-70521 (E.D.
i PE hoe ccccceccecceevesivecsees 7
Lemon v. Kurtzman, 411 U.S. 192 (1973) .......... 8, 11, 19
Linkletter v. Walker, 381 U.S. 618 (1965) .............. 8
Michigan v. Payne, 412 U.S. 47 (1973) ..........0000es 14
Mikelson v. Wisconsin Bridge & Iron Co., 359 F. Supp.
De eo ai ae pene eueneeeebess 12
North Carolina v. Pearce, 395 U.S. 711 (1969) ......... 15
Reliford v. Eastern Coal Corp., 260 F.2d 447 (6th Cir.
1958), cert. denied 359 U.S. 958 (1959) .............. 12
Robbins v. Newman, 481 F. Supp. 1241 (E.D. Mo. 1979) . 19
Roberts v. Russell, 392 U.S. 293 (1962) ............... 14
Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352
EE ah teal ea AERC aC eed wend we ea 0 0 65ded ones
Sanderson vy. Ford Motor Co., 483 F. 2d 102 (5th Cir.
SREP TTTLAUTT TT TERE TEL TT TLE 12
Sandobal v. Armour Co., 429 F.2d 249 (8th Cir. 1970) .. j9
Sciaraffa v. Oxford Paper Co., 310 F. Supp. 891 (D.
Kee GbsebectSsencct ev eoedsavectessucue 12
Scott v. Chrysler Corp., 107 L.R.R.M. 308 (E.D. Mich.
EAL EREN SLES, LS Ra a Sm a 7
Sear v. Cadillac Automobile Co., 654 F.2d 4 (lst Cir.
i eu Cer Rieko ven 665s 6 ds bb wha weeees 7
Singer v. The Flying Tiger Line, inc., 652 F.2d 1349 (9th
iE + 1oe6bs GhRiic ceeds eécet ste eouesneWle 5, 6, 16
iv
Smart v. Ellis Trucking Co., 580 F. 2d 215 (6th Cir. 1978),
cert. denied 440 U.S. 958 (1979) ...........00005- 13, 17
Stoval v. Denno, 388 U.S. 293 (1967) ............000e. 5
Tehan v. United States, 382 U.S. 406, reh. denied 383
eT eer 8
Tully v. Fred Olson Motor Service, Co., 27 Wis. 2d 476,
PA Se ft 0 ee 12
United Parcel Service, Inc. v. Mitchell, 101 S. Ct. 1559
ery 4, 5, 6, 7, 10, 13, 14, 15, 16, 17, 18, 19, 21
Warren v. International Brotherhood of Teamsters, 554
At f fe) Beer ee 12
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
No.
le
JOSEPH A. DAVIDSON,
Petitioner,
v
ROADWAY EXPRESS, INC.,
Respondent.
rr
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
The petitioner Joseph A. Davidson respectfully prays that a
writ of certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Seventh Circuit en-
tered in this proceeding on June 5, 1981.
OPINION BELOW
The opinion of the Court of Appeals is found at Davidson v.
Roadway Express, Inc., 650 F.2d 902 (7th Cir. 1981).
JURISDICTION
The judgment by the Court of Appeals for the Seventh Cir-
cuit was entered on June 5, 1981. A timely petition for rehear-
ing was denied on August 14, 1981. A timely petition for exten-
sion of time to file for a writ of certiorari was filed in this Hon-
orable Court, which entered an order extending the time to
December 28, 1981. This petition for certiorari was filed within
the time provided. This Court's jurisdiction is invoked under
28 U.S.C. § 1257(1).
QUESTION PRESENTED
Whether the Court of Appeals for the Seventh Circuit erred
2
in applying United Parcel Service, Inc. v. Mitchell, 101 S. Ct.
1559 (1981), to time bar the petitioner's claim after the trial
court had entered judgment in his favor.
STATUTORY PROVISIONS INVOLVED
United States Code, Title 29:
§ 185. Suits by and against labor organizations
(a) Venue, amount, and citizenship. Suits for violation of con-
tracts between an employer and a labor organization represent-
ing 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 juris-
diction of the parties, without respect to the amount in con-
troversy or without regard to the citizenship of the parties.
Indiana Code:
34-1-2-1.5. Employment agreements not in writing. All ac-
tions relating to the terms, conditions, and privileges of
employment except actions based upon a written contract (in-
cluding, but not limited to, hiring or the failure to hire, sus-
pension, discharge, discipline, promotion, demotion, retire-
ment, wages, or salary) shall be brought within two [2] years of
the date of the act or omission complained of. [IC 34-1-2-1.5, as
added by Acts 1977, P.L. 328, § 1, p. 1502.]
Indiana Code:
34-1-2-1 [2-601]. Limitation of actions — Six year statute. —
The following actions shall be commenced within six [6] years
after the cause of action has accrued, and not afterwards.
First. On accounts and contracts not in writing.
Second. For use, rents, and profits of real property.
Third. For injuries to property other than personal property,
damages for any detention thereof, and for recovering posses-
sion of personal property.
Fourth. For relief against frauds. [Acts 1881 (Spec. Sess.),
ch. 38, § 37, p. 240; 1951, ch. 301 § 1, p. 999.]
Indiana Code:
3
34-4-2-13. Vacating an award. (See appendix)
STATEMENT OF THE CASE
Petitioner Joseph A. Davidson, (hereinafter referred to as
“Davidson”), began his employment as a truck driver with
Roadway Express, Inc., respondent herein, (hereinafter refer-
red to as “Roadway”), on September 21, 1972. He worked con-
tinuously in that capacity until February 19, 1975, when he
became involved in a motor vehicle accident resulting in his
discharge. Davidson was a member of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local Union No. 135, (hereinafter referred
to as the “Union’”).
On the date of his discharge, Davidson, as an employee of
Roadway, was covered by a collective bargaining agreement
existing between Roadway and the Union and known as the Na-
tional Master Freight Agreement and Central States Area
Over-the-Road Supplemental Agreement.
On February 21, 1975, Davidson filed a grievance with the
Union demanding reinstatement, back pay, and other relief.
Davidson's discharge was upheld at the Indiana Joint State
Committee hearing on March 27, 1975.
Subsequent to the decision by the Indiana Joint State Com-
mittee, Davidson made two attempts to re-open his case before
the same committee based on new evidence. The Committee
denied Davidson's second request to re-open the case on July
24, 1975.
On March 19, 1976, Davidson filed this action in the United
States District Court, Southern District of Indiana, In-
dianapolis Division, claiming that Roadway discharged him in
violation of the applicable collective bargaining agreement and
that the Union, also named as a defendant, had breached its
duty of fair representation by its improper handling of David-
son's grievance.
4
Prior to trial, Roadway moved for summary judgment on the
grounds that Davidson’s claim was barred by the three (3) month
limitation in Section 12 of the Federal Arbitration Act. 9 U.S.C.
§ 12, or by the ninety (90) day limitation in the Indiana Uni-
form Arbitration Act, Ind. Code 34-4-2-13. After briefs and
oral argument, the trial court entered an order dated April 27,
1979, ruling that the applicable statute of limitations for actions
under 29 U.S.C. § 185 arising in Indiana was the six (6) year
provision for oral contracts found in the Ind. Code 34-1-2-1,
and cited as authority this Court's opinion in International
Union (UAW) v. Hoosier Cardinal Corp., 383 U.S. 399 (1966).
Trial commenced on April 7, 1980, at which time the Union
was voluntarily dismissed from the suit. After nine days of trial,
the jury returned a verdict in favor of Davidson against Road-
way and awarded him $33,000.00 in back wages. The jury, sit-
ting in an advisory capacity, also determined that the Union
had breached its duty of fair representation. The trial court
made Findings of Fact and Conclusions of Law consistent with
the jury verdict, and on July 10, 1980, issued a judgment
reinstating Davidson to his former position and ordering Road-
way to pay to Davidson the amount of damages awarded by the
jury.
Roadway appealed the final judgment of the trial court to the
United States Court of Appeals for the Seventh Circuit. In the
Seventh Circuit. Roadway abandoned its claim that the Federal
Arbitration Act, 9 U.S.C. § 12, applied and relied solely on its
claim that the Indiana Uniform Arbitration Act, Ind. Code 34-
4-2-13, limitation period should bar Davidson's claim. Briefs
were filed and oral argument was heard in the Seventh Circuit
on April 16, 1981.
After oral argument was heard on Roadway’s appeal, this
Honorable Court issued its opinion in United Parcel Service, Inc. v.
Mitchell, 101 S. Ct. 1559 (1981), wherein this Court reversed
the Court of Appeals for the Second Circuit which had applied
a six (6) year limitations period to an action under 29 U.S.C. §
5
185. This Honorable Court held that the most appropriate state
statute of limitations was the ninety (90) day period imposed by
New York for the bringing of an action to vacate an arbitration
award.
On June 5, 1981, the United States Court of Appeals for the
Seventh Circuit rendered its decision in Davidson and set aside
the trial court judgment by applying the ninety (90) day limita-
tion period found in the Indiana Uniform Arbitration Act, Ind.
Code 34-4-2-13, citing as authority this Court's opinion in
Mitchell.
Davidson then filed a petition for rehearing before the
Seventh Circuit claiming that the Court of Appeals had erred
in applying Mitchell to bar his claim after the trial court had
rendered judgment in his favor. On August 14, 1981, the
Seventh Circuit denied Davidson's petition for rehearing, and
remanded his case back to the trial court for entry of an order
of dismissal.
Davidson, who had been working at Roadway under trial
court order, was discharged by Roadway immediately following
the entry of dismissal. The trial court assessed costs against
Davidson in the amount of $8,244.06.
REASONS FOR GRANTING THE WRIT
1. THERE IS A CONFLICT AMONG THE DECISIONS
OF THE COURTS OF APPEALS AND THE DIS-
TRICT COURTS REGARDING THE RETROACTIVE
APPLICATION OF UNITED PARCEL SERVICE, INC.
v. MITCHELL.
On August 13, 1981, the United States Court of Appeals for
the Ninth Circuit decided Singer v. The Flying Tiger Line,
Inc., 652 F.2d 1349 (9th Cir. 1981), and declined to apply
United Parcel Service, Inc. v. Mitchell, 101 S. Ct. 1559 (1981), to bar
aclaim filed prior to this Court's issuance of its Mitchell decision.
In Singer, the United States District Court for the Central
District of California had rendered judgment for the employer
and union and the plaintiff appealed. Both at the trial court
6
level, and before the Ninth Circuit, the employer and the
union had argued that the plaintiff's claim should be barred by
California’s three (3) year statute of limitations. Before oral ar-
gument, however, this Honorable Court decided Mitchell.
The Ninth Circuit in Singer considered whether Mitchell re-
quired application of California's one hundred (100) day limita-
tion period for setting aside arbitration awards which would
time bar the claim of the plaintiff before it. The Ninth Circuit
held that, although Mitchell would require the application of
the shorter statute of limitation to future cases, the standards
set forth in this Court's opinion in Chevron Oil Co. v. Huson,
404 U.S. 97 (1971), would require that Mitchell not be applied
retroactively:
In the future, as Mitchell requires, when the action is
commenced after an unfavorable arbitral decision, we
shall treat suits against a union for a breach of the duty
of fair representation and against an employer for a
breach of a collective bargaining agreement under this
type of limitations statute. In this case, however, we de-
cline to apply the rule.
652 F.2d at 1353.
A similar result was reached in Kennard vy. United Parcel
Service, No. 81-70156 (E.D. Mich. Sept. 16, 1981), reprinted
in the Appendix. In Kennard, the plaintiff had filed suit on
January 15, 1981, alleging wrongful discharge by the employer
and breach of the duty of fair representation in connection with
the union’s handling of the arbitration proceeding where his
discharge was upheld. After publication of the Mitchell deci-
sion, both the union and the company moved to dismiss the
plaintiff's complaint on a statute of limitations defense, claiming
that Michigan’s twenty (20) day statute of limitations relative to
vacating arbitration awards should apply. The district judge for
the Eastern District of Michigan in Kennard also applied the
Chevron Oil analysis to determine that Mitchell should not be
given retroactive application in the case before him.
7
Contrary decisions have been reached in at least one other
court of appeal: decision and in several district court opinions.
In Sear v. Cadillac Automobile Co., 654 F.2d 4 (ist Cir. 1981),
the First Circuit held that Mitchell only applied to a suit
against an employer, not to a suit against a union for breach of
the duty of fair representation. The court in Sear appeared to
assume without question that Mitchell would apply retroac-
tively to the case before it.
In Scott v. Chrysler Corp., 107 L.R.R.M. 308 (E.D. Mich.
1981), the district court for the Eastern District of Michigan
applied Michigan's twenty (20) day statute of limitations relat-
ing to vacating arbitration awards, also without discussing
whether Mitchell should be given retroactive application.
In Kikos v. Nu-Car Driveaway Co., No. 78-70521 (E.D.
Mich. Oct. 19, 1981), a district judge in the Eastern District
of Michigan found that the Chevron Oil criteria were not met
and gave Mitchell retroactive application. Likewise, in Brain v.
Roadway Express, Inc., No. C 80-2338 (N.D. Ohio Dec. 3,
1981), the Northern District of Ohio applied the Chevron Oil
analysis and determined that Mitchell should be given retroac-
tive application. In Del Costello y. Anchor Motor Freight, No.
J-78-436 (D. Md. Oct. 22, 1981), the court entered a
summary judgment against the plaintiff on the statute of limita-
tions defense. The court also considered the retroactive appli-
cation of Mitchell, but held that the Chevron Oil criteria had
not been met.
The above cited cases illustrate the conflict which has arisen
among the various circuits and in the district courts regarding
the retroactive application of this Court's decision in Mitchell to
the cases arising under 29 U.S.C. § 185. A writ of certiorari to
resolve this conflict would be an appropriate exercise of this
Court's discretion.
8
2. THE RETROACTIVE APPLICATION OF UNITED
PARCEL SERVICE, INC. v. MITCHELL, IS AN IM-
PORTANT QUESTION OF FEDERAL LAW WHICH
HAS NOT BEEN DECIDED BUT SHOULD BE DE-
CIDED, BY THIS COURT IN LIGHT OF THE
CRITERIA SET FORTH IN CHEVRON OIL v.
HUSON.
The power to grant or deny retroactive effect is neither com-
pelled nor prohibited by the United States Constitution.
Moreover, insofar as the general principle of retroactivity is
concerned, no distinction is to be drawn between civil and
criminal litigation, nor constitutional and non-constitutional
cases, Lemon v. Kurtzman, 411 U.S. 192 (1973); Tehan v.
United States, 382 U.S. 406, reh. denied 383 U.S. 931 (1966);
Linkletter v. Walker, 381 U.S. 618 (1965).
The Court has utilized three general tests to determine the
retroactivity of its new rules: (1) the purpose to be served by
the particular new rule; (2) the extent of reliance which had
been placed upon the old rule; and (3) the effect on the ad-
ministration of justice of a retroactive application of the new
rule. Brown v. Louisiana, 447 U.S. 323 (1980); Daniel v.
Louisiana, 420 U.S. 31 (1975); Chevron Oil Co. v. Huson, 404
U.S. 97 (1971); Desist v. United States, 395 U.S. 244, reh. de-
nied 395 U.S. 931 (1969); Stoval v. Denno, 388 U.S. 293 (1967);
Tehan v. United States, 382 U.S. 406, reh. denied 383 U.S. 931
(1966).
This Honorable Court's opinion in Chevron Oil Co. v.
Huson, 404 U.S. 97 (1971), dealt specifically with the criteria
utilized to determine whether a decisional change in the com-
mon law regarding the applicable statute of limitations should
be given retroactive effect.
In 1968, the plaintiff in Chevron Oil brought suit in the
United States District Court for Louisiana to recover for per-
sonal injuries sustained approximately two years earlier while
working on the defendant's artificial island drilling rig. When
the plainitff filed his suit, various court of appeals applied ad-
9
miralty law to the Outer Continental Shelf Lands Act, the stat-
ute under which the plaintiff brought his lawsuit. Under exist-
ing admiralty law, the plaintiff's lawsuit was timely filed.
One year later, however, while the Chevron Oil action was
still pending trial, this Court decided Rodrigue v. Aetna Casu-
alty & Surety Co., 395 U.S. 352 (1969). The Supreme Court in
Rodrigue interpreted the Outer Continental Shelf Lands Act as
making state law remedies, rather than admiralty law rem-
edies, applicable to such accidents. Relying on the Rodrigue
decision, the district court held that the Louisiana one (1) year
statute of limitations for personal injury actions governed, and
that the action before it was barred.
On appeal, the Fifth Circuit reversed and remanded, hold-
ing that the Louisiana statute of limitations barred the remedy
but not the right to recover and reinstated the suit. This
Honorable Court affirmed the Fifth Circuit's judgment and
remanded the case to the trial court.
Justice Stewart, writing on behalf of the majority, considered
the key issue to be whether the state statute of limitations re-
quired by the Rodrigue decision should be applied retroac-
tively. Justice Stewart noted that, although the nonretroactive
application of judicial decisions had been most conspicuously
considered in the area of criminal process, the retroactivity
issue was by no means limited to the criminal arena. In fact,
the earliest instances of nonretroactive application of the deci-
sions of this Court, some of which were more than a century
old, involved cases regarding nonconstitutional, noncriminal
state law.
Justice Stewart summarized the law and announced the
three criteria to be utilized in determining whether a judicial
decision of the Supreme Court should be applied retroactively:
In our cases dealing with the nonretroactivity ques-
tion, we have generally considered three separate fac-
tors. First, the decision to be applied nonretroactively
must establish a new principle of law, either by over-
10
ruling clear past precedent on which litigants may have
relied, . . . or by deciding an issue of first impression
whose resolution was not clearly foreshadowed, .. .
Second, it has been stressed that “we must . . . weigh
the merits and demerits in each case by looking to the
prior history of the rule in question, its purpose and ef-
fect, and whether retrospective operation will further or
retard its operation.” . . . Finally, we have weighed the
inequity imposed by retroactive application, for [w]here
a decision of this Court could produce substantial in-
equitable results if applied retroactively, there is ample
basis in our cases for avoiding the “injustice or hardship”
by a holding of nonretroactivity. [Citations omitted].
404 U.S. at 106-107.
Applying these criteria to the case at bar, it is clear that
Mitchell ought not be given retroactive effect.
A. THIS COURT'S OPINION IN UNITED PARCEL SERV-
ICE, INC. v. MITCHELL OVERRULED CLEAR PAST
PRECEDENT ON WHICH DAVIDSON RELIED.
The pre-existing law in the Seventh Circuit regarding the
applicable statute of limitations in Indiana for actions arising
under 29 U.S.C. § 185 was Ind. Code 34-1-2-1, the six (6) year
statute of limitations for actions on contracts not in writing. The
district judge viewed labor contracts a: hybrid agreements
partly in writing and partly oral to which the statute of limita-
tions for contracts not in writing was the most readily applica-
ble. The district court chose a six (6) year statute of limitation of
actions of this type in preference to the twenty (20) year In-
diana statute of limitations for written contracts. The six (6)
year statute of limitations was approved by this Court in Inter-
national Union (UAW) v. Hoosier Cardinal Corp., 383 U.S.
706 (1966), as the appropriate state statute to apply to cases
arising in Indiana under 29 U.S.C. § 185.
The district judge sitting in Indiana on Davidson's case
applied the rule of Hoosier Cardinal to this case. It is reasona-
ble to assume that Davidson relied on that clear six (6) year
statute of limitations.
11
A new rule will not be given retroactive application where
there was reasonable and justifiable reliance on the old rule so
as to make retroactive application of a new contrary rule unfair.
As this Court stated in Lemon vy. Kurtzman, 411 U.S. 192
(1973), rejection of retroactive application of judge-inade rules
in certain cases reflects the reality that people must rely on
rules of law in governing their conduct:
. Statutory or even judge-made rules of law are
hard facts on which prolly must rely in making deci-
sions and in shaping their conduct. This fact of legal life
underpins our modern decisions recognizing a doctrine
of nonretroactivity.
411 U.S. at 199.
The Chevron Oil decision, where this Court refused to give
retroactive effect to a shorter state statute of limitations it had
recently announced, turned on the issue of reliance and
foreseeability:
. . . Yet retroactive application of the Louisiana stat-
ute of limitations to this case would deprive the re-
spondent of any remedy whatsoever on the basis of
superseding legal doctrine that was quite unforeseeable.
To abruptly terminate this lawsuit that has proceeded
through lengthy and, no doubt, costly discovery stages
for a year would surely be inimical to the beneficient
purpose of the Congress.
It would also produce the most “substantial inequita-
ble results, ” . . . to hold that the respondent “slept on
his rights” at a time when he could not have known the
time limitation tha’ the law imposed upon him .. .
[Nlonretroactive application here simply preserves his
right to a day in court.” [Emphasis added]. [Citations
and footnote omitted].
404 U.S. at 108.
The “six-year rule” announced in Hoosier Cardinal and jus-
tifiably relied on by Davidson derives from a long line of cases
which had held the most closely analogous state statute of limi-
tations in 29 U.S.C. § 185 actions to be that applicable to con-
12
tract actions: Kaufmen & Broad Home Systems, Inc. v. Interna-
tional Brotherhood of Fireman & Oilers, 607 F.2d 1104 (5th
Cir. 1979); Warren v. International Brotherhood of Teamsters,
544 F.2d 334 (8th Cir. 1976); Butler v. International Brother-
hood of Teamsters, 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); Sandobal v. Ar-
mour Co., 429 F.2d 249 (8th Cir. 1970); Falsetti v. United Mine
Workers, 355 F.2d 658 (3d Cir. 1966); Reliford v. Eastern Coal
Corp., 260 F.2d 447 (6th Cir. 1958), cert. denied 359 U.S. 958
(1959); Allen v. McWilliams Electric Co., 494 F. Supp. 53
(N.D. Ill. 1980); Robbins v. Newman, 481 F. Supp. 1241 (E.D.
Mo. 1979); Allen v. Amalgamated Transit Union, 415 F. Supp.
662 (D.C. Mo. 1976) affd in pertinent part and remanded in
part, 554 F.2d 876 (8th Cir. 1976), cert. denied 434 U.S. 891
(1977); Grant v. Mulvihill Bros. Motor Service, Inc., 428 F.
Supp. 45 (D.C. Ill. 1976); Carpenters & Millwrights Health
Ben. Trust Fund v. Domestic Linen Insulation Co., 387 F.
Supp. 144 (D. Colo. 1975); Buchholtz v. Swift & Co., 62
F.R.D. 581 (D. Minn. 1973); Mikelson v. Wisconsin Bridge &
Iron Co., 359 F. Supp. 444 (D. Wis. 1973); Sciaraffa v. Oxford
Paper Co., 310 F. Supp. 891 (D. Maine 1970); Cheese v. Afram
Bros. Co., 32 Wis. 2d 320, 145 N.W. 2d 716 (1966); Tully v.
Fred Olson Motor Service Co., 27 Wis. 2d 476, 134 N.W. 2d
393 (1965).
Although the overwhelming majority of breach of contract/
duty of fair representation cases have applied state contract stat-
utes of limitations, a few have applied tort limitations periods
in suits involving only duty of fair representation claims, San-
derson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973); Cole-
man v. Kroger Co., 399 F. Supp. 724 (D.C. Va. 1975); and in
at least one instance, in a breach of collective bargaining action,
DeArroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d
281 (ist Cir. 1970), cert. denied 400 U.S. 877 (1970), reh.
denied 400 U.S. 953 (1971).
13
In Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978),
cert. denied 440 U.S. 958 (1979), the court applied a state
three-year limitation period to a wrongful discharge claim and
specifically rejected the statute of limitations applicable to ac-
tions to set aside arbitration proceedings:
The simplest answer to Ellis’ argument is that Appel-
lant’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.
Although the effect of a judgment for Appellant would
be to nullify the arbitral decision, the § 301 action is
‘independent’ of the grievance process. [Footnotes and
citations omitted].
580 F.2d at 219.
This Court's opinion in Mitchell changes this long line of
prior authority in holding that the statute of limitations applic-
able to vacating arbitration awards must be applied and not the
longer state statutes of limitations for breach of contract or per-
sonal injuries. In light of the Sixth Circuit's ruling in Smart v.
Ellis Trucking Co., and this Court’s Hoosier Cardinal ruling,
the Mitchell decision clearly establishes a new principle of law
by overruling clear past precedent.
B. RETROACTIVE APPLICATION OF THE NEW
RULE ANNOUNCED IN UNITED PARCEL SER-
VICE, INC. v. MITCHELL WILL NOT FURTHER
THE POLICIES SUPPORTING STATUTES OF
LIMITATIONS.
The second criterion set forth in Chevron Oil is essentially a
balancing test whereby the court weighs the merits and de-
merits of retroactive application of a change in the law in each
case by looking to the prior history of the rule in question, its
purpose and effect, and by determining whether retrospective
operation will further or retard its operation.
The Mitchell decision provides notice to future litigants that
statutes of limitations for vacating arbitration awards may be
applied as the appropriate state statute of limitation in 29
14
U.S.C. § 185 claims. Mitchell need not be given retroactive
application in order to effectuate either the general purposes of
a statute of limitations, or the specific intent of Mitchell to pro-
vide an appropriate limitation period which will serve to re-
solve cases rapidly. The Mitchell rule on statutes of limitations
does not go to the reliability of the fact-finding process nor af-
fect the fairness and due process considerations which underlie
the cases applying newly announced rules affecting substantial
rights retroactively. An examination of the cases applying the
retroactive doctrine illustrates this point.
For example, unlike Brown v. Louisiana, 447 U.S. 323
(1980) applying retroactively the rule of Burch v. Louisiana,
441 U.S. 1306 (1979), which prohibited convictions by a
nonunanimous jury, Mitchell involves a rule which does not
affect the ultimate determinations of the finder of fact. In
Brown, this Court stated that the distinguishing characteristic
of those constitutional doctrines given retroactive effect is their
intent to affect “the very integrity of the fact-finding process
and avert the clear danger of convicting the innocent.” This
Court's opinion in Brown speaks in terms of correcting serious
flaws in the trial process and insuring reliable verdicts. The
unanimous jury requirement of Burch was held to be a central
and constitutionally required safeguard for reliable criminal
verdicts so as to require retroactive application.
Likewise, in Roberts v. Russell, 392 U.S. 293 (1962), this
Court required the retroactive application of the rule of Bruton
v. United States, 391 U.S. 123 (1968), banning the use at trial
of an extrajudicial confession of a co-defendant, because the
Bruton rule corrected a serious flaw in the fact-finding process.
Extrajudicial confessions have serious reliability problems and
are violative of the critical right to cross-examination, itself a
safeguard for reliability. A statute of limitations change does
not correct an analogous “serious flaw.”
In contrast, this Court refused in Michigan v. Payne, 412
U.S. 47 (1973), to give retroactive application to its rule articu-
15
lated in North Carolina v. Pearce, 395 U.S. 711 (1969), which
prohibited more severe sentences in cases ordered retried after
the original conviction was overturned on appeal. The Pearce
rule, although it did involve “questions touching on the integ-
rity of the judicial process,” did not affect the “fair determina-
tion of guilt or innocence.”
The impact of the Mitchell statute of limitations rule on the
fact-finding process itself is non-existent. It does not affect the
reliability of a plaintiffs evidence nor the substance of the evi-
dence at trial. It is a procedural device alone which provides
notice to prospective litigants that they must bring their actions
within a certain frame.
Justice Rehnquist, writing for the majority in Mitchell, an-
nounced a federal policy favoring the rapid disposition of labor
disputes:
We said in Hoosier Cardinal that one of the leading
federal policies in this area is the ‘relatively rapid disposi-
tion of labor disputes.’ 383 U.S. at 707. Cf. 29 U.S.C.
§$160(b) (1976) (6-month period under NLRA). This policy
was one of the reasons the court in Hoosier Cardinal
chose the generally shorter period of actions based on
oral contract rather than that for actions upon a written
contract, ibid., and similar analysis supports our adop-
tion of the shorter period of actions to vacate an arbitra-
tion award in this case.
101 S. Ct. at 1564.
The issue then is whether or not this federal policy will be
“retarded or furthered” by a retrospective operation of the
Mitchell case. A nonretroactive application of the Mitchell case
would in no way retard the federal policy at stake.
Defendant has not and cannot claim that Davidson's claim is
“stale” or that it has been prejudiced in any way by a seven (7)
month delay from the last denial of Davidson's request to
reopen the decision, or by the one year which elapsed from the
committee hearing to the filing of the complaint.
The purpose of rapid disposition of labor disputes announced
16
in Mitchell can be fully served by prospective application as
recent decisions of the Ninth Circuit and the Eastern District
of Michigan have held.
The Ninth Circuit refused to apply Mitchell retroactively in
Singer v. Flying Tiger, 652 F.2d 1353 (1981). The Singer court
relied upon Chevron Oil, and held that the policies supporting
Mitchell could be served by prospective application and that a
retroactive application would be inequitable since the new rule
announced could not have been anticipated:
Moreover, we believe that it would be inequitable to
apply such a rule retroactively. In Chevron Oil Co. v.
Huson, 404 U.S. 97, 105-108, 92 5S. Ct. 349, 354-56, 30
L. Ed.2d 296 (1971), the Supreme Court, in declining to
apply a shorter statute of limitations retroactively to ex-
tinguish a claim, identified a number of factors that it
considered important. In this case, as in Huson, we be-
lieve that a critical factor is that the rule of the Mitchell
case is not one which might have been anticipated. Al-
though the Price decision is not precisely on point, we
believe Singer might reasonably have relied upon it to
conclude that he had three years to file a claim. We
conclude that Singer cannot be accused of a lack of dili-
gence in the filing of his claim in district court, at least
insofar as the 1977 grievance is concerned. We will
therefore apply the statutes of limitations used by the
district judge, namely a three year statute for claims
against the union and a four year statute for claims
against the company.
652 F.2d 1353.
The District Court for the Eastern District of Michigan, also
found in Kennard v. United Parcel Service, Inc., No. 81-70156
(E.D. Mich. Sept. 24, 1981), that the purpose of speedy ad-
judication of cases of this type was served by the plaintiffs
filing suit within twelve (12) weeks of the arbitration decision, a
filing which the court found to be more than expeditious:
Further, insofar as actions that are already completed
are concerned, it does not appear that the decision
made by the court in this case as to retroactivity will
17
either retard or advance operation of the principle in
question.
Opinion at 7.
The district court found that the plaintiff could have reasona-
bly relied on the Sixth Circuit's holding in Smart v. Ellis Truck-
ing Co., which was clearly reversed by the Mitchell decision. It
discussed at length the three factors relied on in Chevron Oil
and concluded:
When the three criteria are applied in toto to the facts
of this case, this court concludes that Mitchell should
not be applied retroactively to this case, because the
equities weigh heavily in favor of the plaintiff. There
was a specific overruling of a Sixth Circuit decision deal-
ing with this precise same issue, and the court does not
see the purpose of the rule either being particularly
furthered or retarded by the failure to apply retroac-
tively the Mitchell decision to this specific case.
Opinion at 9.
Davidson's reliance on the prior decisions of the district
courts, the court of appeals, and this Honorable Court was jus-
tifiable and reasonable. Most importantly, this Court had held
in Hoosier Cardinal that a six-year statute of limitations for oral
contracts was the appropriate rule to be applied in Indiana.
Such reliance cannot be used at this date to thwart Davidson's
good faith litigation which had been brought to a successful
conclusion and militates in favor of nonretroactive application
of the new rule enunciated in Mitchell.
C. RETROACTIVE APPLICATION OF UNITED PAR-
CEL SERVICE, INC. v. MITCHELL WILL PRO-
DUCE SUBSTANTIAL INEQUITABLE RESULTS
TO DAVIDSON.
The third Chevron Oil criteria deals with whether the deci-
sion to apply a judicial decision retroactively would produce
“substantial inequitable results.” If substantial inequitable re-
sults are found to exist, this Court has determined that there is
18
ample basis for ave‘ding the “injustice or hardship” by a hold-
ing of nonretroactivity.
Attention is drawn to the discussion in Chevron Oil where it
was stated that time-barring the plaintiff's lawsuit retroactively
would be “anomalous indeed,” would deprive the plaintiff of
any remedy whatsoever on the basis of superseding legal doc-
trine that was quite unforeseeable.
To abruptly terminate this lawsuit that has proceeded
through lengthy and, no doubt, costly discovery stages
for a year would surely be inimical to the beneficient
purpose of the Congress.
404 U.S. at 107.
Substantial inequitable results would be reached by ‘deter-
mining in effect that the litigant had “slept on his rights” at a
time when he could not have known the time limitation that
the law would later impose upon him. Conversely, a nonret-
roactive application, “simply preserves his right to a day in
court.” Chevron Oil Co. v. Huson, 404 U.S. at 108.
The same reasoning clearly applies to this case. In deciding
whether the third criterion is met, it is not difficult to see the
injustice or hardship created if the Mitchell case is applied to
bar Davidson's case. This suit was promptly filed and has pro-
ceeded through not only costly discovery but through a full
trial on the merits. This Court has stated that it wants a speedy
resolution of these types of lawsuits, and Davidson has com-
plied in every way with that policy consideration.
The retroactive application of Mitchell to Davidson not only
deprives him of “any remedy whatsoever on the basis of super-
seding legal doctrine that was quite unforeseeable,” similar to
that condemned in Chevron Oil, it also deprives him of a jury
verdict and judgment which had restored him to his
employment.
The cases cited above applying the statutes of limitations
applicable to contract actions, have stood for many years and
have been justifiably relied upon not only by Davidson but by
19
many litigants. Statutes of limitations are precisely the type of
“hard facts on which people must rely in making decisions and
in shaping their conduct,” Lemon v. Kurtzman, 411 U.S. at
199, and as such, new rules drastically altering them do not
lend themselves to retroactive application. To apply Mitchell
to a litigant such as Davidson who had not only filed his case
prior to the decision, but had obtained a jury verdict, in spite
of the grave and far reaching effects such a retroactive applica-
tion would produce, is to deny basic due process. Davidson has
done no more than rely on the long standing laws as construed
by our courts. The avoidance of such injustice or hardship
mandates that Mitchell be given nonretroactive effect.
3. ASSUMING ARGUENDO THAT UNITED PARCEL
SERVICE, INC. v. MITCHELL IS TO BE APPLIED
RETROACTIVELY, THE MOST APPROPRIATE
STATE STATUTE OF LIMITATION IS THE IN-
DIANA TWO YEAR STATUTE OF LIMITATION
COVERNING EMPLOYMENT ACREEMENTS.
As noted in the Statement of Facts, Roadway moved at the
trial court level to dismiss Davidson's suit as untimely under
either Indiana's ninety (90) day statute of limitations relative to
vacating arbitration awards, or the three (3) month provision of
the Federal Arbitration Act. Davidson argued that clear prece-
dent required application of Indiana's six (6) year statute of
limitations for oral contracts.
In deciding between the two Indiana statute of limitations at
issue, the district court trial judge relied exclusively on Inter-
national Union (UAW) v. Hoosier Cardinal Corp., 383 U.S.
696 (1966) and concluded that the six (6) year provision of Ind.
Code 3A-1-2-1, for contracts not in writing, was most applicable
to this case.
In Hoosier Cardinal, the Court was faced with choosing be-
tween Indiana's six (6) year statute of limitations for oral con-
tracts, and a twenty (20) year statute for written agreements.
Proof of the breach of contract claim and of the measure of
20
damages depended upon interpretation of the written agree-
ments between the company and the union, as well as proof of
the existence and duration of separate oral employment con-
tracts between the employer and each of the aggrieved
employees. The action was, therefore, characterized as one not
exclusively based upon a written contract, and the statute gov-
erning oral contracts was applied.
This Court noted that the characterization that Indiana law
had imposed upon the action did not lead to any conflict with
federal labor policy in spite of the fact that Congress had in a
similar context provided for a six (6) month limitation period in
unfair labor practice proceedings under 29 U.S.C. § 160(b).
This provision was held to suggest:
. . . that relatively rapid disposition of labor disputes
is the goal of federal labor law. Since state statutes of
limitations governing contracts not exclusively in writing
are generally shorter than those applicable to wholly
written agreements, their applicability to Sec. 301 ac-
tions comports with that goal.
383 U.S. at 707.
In Hoosier Cardinal, this Court held that, although the
characterization of the action is initially defined by the state
statutes, it is ultimately a question of federal law. There is no
reason, however, to reject the characterization that state law
would impose unless that characterization is unreasonable or
otherwise inconsistent with national labor policy. Therefore,
the question is how does Indiana law characterize this action,
and is that characterization inconsistent with the national labor
policy.
Subsequent to the Hoosier Cardinal decision, the Indiana
legislature adopted Ind. Code 34-1-2-1.5 applying a two (2)
year statute of limitations to employment agreements not in
writing. The district court below relied on Hoosier Cardinal
and applied a six (6) year Indiana statute of limitations. Neither
21
the district judge nor the Seventh Circuit considered the stat-
ute regarding employment agreements.
In Mitchell, this Court was faced with choosing one of two
possible statutes of limitations. The New York law could have
characterized an action against an employer, as either a motion
to vacate an arbitration award or an action on a written con-
tract. The limitation periods were ninety (90) days and six (6)
years, respectively. This Court, after carefully noting that the
question before them was limited to choosing between two
equally applicable statutes, decided that the best characteriza-
tion was that of a motion to vacate an arbitration award in light
of the overriding federal policy favoring rapid resolution of
labor cases.
There is a substantial difference in choosing between ninety
(90) days and six (6) years, and choosing between ninety (90)
days and two (2) years. The ninety (90) day choice in Mitchell
may have been the period most consistent with the nature of
the action and the policy underlying the federal statute given
the alternatives available, but may not represent an appropriate
choice when the alternative is a shorter two (2) year statute of
limitations.
It is noted in Mitchell that “. . . if New York had adopted a
specific 6-year statute of limitations for employee challenges to
awards of a Joint Panel or similar body, we would be bound to
apply that statute under the reasoning of Hoosier Cardinal.”
101 S. Ct. at 1564.
This observation is applicable to this case. The Indiana legis-
lature, in adopting a statute of limitations which relates directly
to wrongful discharge claims, has expressed its judgment that
discharged employees should have two (2) years in which to
bring their action.
The Seventh Circuit, in deciding the most appropriate state
statute of limitations to be applied to Davidson's case, only
compared the six (6) year oral contract statute of limitations
applied by the district court judge to the ninety (90) day statute
22
of limitations relative to vacating arbitration awards. After pub-
lication of its opinion wherein it adopted the ninety (90) days
statute of limitations as being more appropriate, Davidson
moved for rehearing claiming, among other things, that the
choice should be between the ninety (90) day statute of limita-
tions, and the more appropriate two (2) year statute of limita-
tions applicable to wrongful discharge actions.
The Indiana legislature has dictated that the appropriate stat-
ute of limitations in wrongful discharge cases is two (2) years.
The Seventh Circuit ignored the mandate of the Indiana legis-
lature when it failed to choose or even to consider the most
closely analogous state limitations statute which is not incon-
sistent with federal labor policy.
CONCLUSION
For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the Seventh Circuit.
Respectfully submitted,
KELMAN, LORIA, DOWNING,
SCHNEIDER & SIMPSON
By: /s/ MORTON E. SCHNEIDER
ANN CURRY THOMPSON
MICHAEL L. PITT
2300 First National Building
Detroit, MI 48226
(313) 961-7363
STEPHEN LAUDIG
RYNEARSON, LAUDIG & MUSSER
1810 East 62nd Street
Indianapolis, Indiana 46220
(317) 257-5391
Counsel for Petitioner
Dated: December 26, 1981.
23
APPENDIX
Joseph A. DAVIDSON, Plaintiff-Appellee,
v.
ROADWAY EXPRESS, INC.
Defendant-Appellant.
Nos. 80-2153, 80-2305.
United States Court of Appeals,
Seventh Circuit.
Argued April 16, 1981.
Decided June 5, 1981.
James E. Hughes, Sommer & Barnard, Indianapolis, Ind.,
for defendant-appellant.
John Calhoun, Lewis Bowman, St. Clair & Wagner, In-
dianapolis, Ind., for plaintiff-appellee.
Before BAUER, Circuit Judge, PECK, Senior Circuit Judge,*
and CUDAHY, Circuit Judge.
CUDAHY, Circuit Judge.
Plaintiff filed this action for wrongful discharge against his
employer, Roadway Express, Inc., and alleged a violation of
the collective bargaining agreement between his employer and
plaintiffs union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union). Plaintiff seeks to avoid the consequences of his fail-
ure to prevail on his wrongful discharge claim in the otherwise
binding grievance procedure established by the contract by al-
leging that the Union did not fairly represent him in that pro-
cedure. See Vaca v. Sipes, 396 U.S. 171, 87 S.Ct. 903, 17
L.Ed.2d 842 (1967). Jurisdiction is based upon Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185 (1976).
The district court ruled that the Union had not fairly repre-
sented the plaintiff in the grievance procedure, and a jury
found that Roadway had discharged plaintiff in violation of the
collective bargaining agreement.
*The Honorable John W. Peck, Senior Circuit Judge of the United States
Court of Appeals for the Sixth Circuit, is sitting by designation.
24
We need address only one of the issues raised by Roadway
on this appeal to resolve the matter. Roadway asserts that
plaintiff failed to file this action within the applicable statute of
limitations. We agree and, accordingly, reverse the judgment
of the district court.
Congress has not enacted a specific statute of limitations for
§ 301 actions. The “timeliness of a Section 301 suit is to be
determined, as a matter of federal law, ‘by reference to the
appropriate state statute of limitations.” " Chauffeurs Local 135
v. Jefferson Trucking Co., 628 F.2d 1023, 1026 (7th Cir. 1980),
cert. denied, __. U.S. ___., 101 S. Ct. 942, 67 L.Ed.2d 111
(1981) (quoting UAW v. Hoosier Cardinal Corp., 383 U.S. 696,
704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966)). In the
instant case, the district court applied the Indiana six-year limi-
tations period for actions based on contract. Ind.Code 34-1-2-1.
In so doing, it rejected the Indiana 90-day limitations period
for actions to vacate an arbitration award. Ind.Code 34-4-2-13.
Subsequent to the district court’s decision and after the ar-
gument of this appeal, the Supreme Court confronted an
indentical choice under New York law in United Parcel Serv-
ice, Inc. v. Mitchell, U.S. _—, 101 S. Ct. 1559, 67 L.
Ed. 732 (S. Ct. April 20, 1981). In Mitchell the Supreme Court
held that a suit against an employer under Section 301 can be
most closely analogized to an action to vacate an arbitration
award because the employee must first establish a flaw in the
binding grievance procedure before being entitled to reach the
merits of his contract claim. Mitchell, __. U.S. at ___, 101 S.
Ct. at 1563-64. The Court also reasoned that the short limita-
tions period for arbitration matters fostered the important fed-
eral policy of rapidly resolving labor disputes. Id. In light of
Mitchell's use of the New York arbitration limitations period,
we are constrained to apply the Indiana 90-day limit estab-
lished for actions to vacate an arbitration award. See also
Chauffeurs Local 135 v. Jefferson Trucking Co., 628 F.2d 1023
(7th Cir. 1980), cert. denied, __. U.S. ___.,, 101 S.Ct. 942, 67
25
L. Ed.2d 111 (1981) (applying the same 90-day limit to an action
by an employer seeking to block a § 301 suit to enforce an arbit-
ration award in favor of the employee).
In the instant case, the final and binding grievance commit-
tee decision was reached on March 27, 1975. Despite the
absence of any contractual provision authorizing reconsidera-
tion, plaintiff made two attempts to reopen the decision. Even
were we to assume that these futile efforts somehow tolled the
running of the statute of limitations, the final action on the
grievance would have taken place in July of 1975. Plaintiff did
not file his § 301 claim until March 19, 1976, more than 7
months later. The complaint was thus untimely under the
90-day Indiana limitations period for moving to vacate an arbi-
tration award.
Accordingly, we reverse the judgment of the district court
and remand with directions to dismiss the complaint.
Reversed.
[Footnotes omitted. }
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
August 14, 1981
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN W. PECK, Senior Circuit Judge*
Hon. RICHARD D. CUDAHY, Circuit Judge
JOSE 2H A. DAVIDSON,
Plaintiff-Appellee,
Cross Appellant.
Nos. 80-2153 & 80-2305 vs.
ROADWAY EXPRESS, INC.,
Defendant-Appellant,
Cross-Appellee.
*The Honorable John W. Peck, Senior Circuit Judge of the United States
Court of Appeals for the Sixth Circuit, is sitting by designation.
26
Appeal from the United States District Court for the South-
ern District of Indiana, Indianapolis Division.
No. 76-C-141
William E. Steckler, Judge.
ORDER
On consideration of the petition for rehearing filed in the
above-entitled cause by JOSEPH A. DAVIDSON, plaintiff-ap-
pellee, all of the judges on the original panel having voted to
deny the same,
IT IS HEREBY ORDERED that the aforesaid petition for
rehearing be, and the same is hereby, DENIED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH A. DAVIDSON,
Plaintiff,
vs.
ROADWAY EXPRESS, INC..,
Defendant.
CIVIL ACTION
IP 76-141-C
ORDER AND JUDGMENT OF DISMISSAL
In accordance with the mandate of the United States Court
of Appeals for the Seventh Circuit, issued August 24, 1981, this
Court's Order of Judgment, issued July 10, 1980, is hereby
RESCINDED, the complaint of Joseph A. Davidson is hereby
DISMISSED, and it is ORDERED that Roadway Express,
Inc. recover from Joseph A. Davidson the costs of this action
and the appeal thereof, in the amount of $8,244.06.
Dated: September 22, 1981.
WILLIAM E. STECKLER
Judge, United States
District Court
27
Copies to:
William Julian, I
Judith T. Kirtland
Lewis, Bowman, St. Clair & Wagner
5101 Madison Avenue
Indianapolis, Indiana 46227
James E. Hughes
W. William Weeks
Sommer & Barnard
1100 Merchants Bank Building
Indianapolis, Indiana 46204
Joseph A. Davidson
R. R. #1, Box 216
Zionsville, Indiana 46077
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
IP 76-141-C
JOSEPH A. DAVIDSON
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, LOCAL UNION NO. 135, and ROADWAY
EXPRESS, INC.
ORDER
This matter is before the Court on defendant Roadway’s mo-
tion for summary judgment. Roadway seeks summary judg-
ment on the grounds that plaintiffs claim pursuant to Section
301(a) of the Labor Mangement Relations Act, 29 U.S.C. §
185(a), is barred by the three-month limitation in Section 12 of
the Federal Arbitration Act or ninety-day limitation in the
Indiana Uniform Arbitration Act, Ind. Code 34-4-2-13. How-
ever, this Court has concluded that the applicable statute of
limitations is the six-year provision in Ind. Code § 34-1-2-1.
International Union (UAW) v. Hoosier Cardinal Corporation,
28
235 F.Supp. 183 (S.D. Ind. 1964), 346 F.2d 242 (7th Cir.
1965), affd 383 U.S. 696 (1966). Accordingly, plaintiffs claim
was timely filed and defendant Roadway’s motion for summary
judgment should be and is hereby DENIED.
IT IS SO ORDERED.
DATED this 27th day of April, 1979.
/s) WILLIAM E. STECKLER
United States District Judge
UNIFORM ARBITRATION ACT
34-4-2-13 [3-240]. Vacating an award. —(a) Upon application
of a party, the court shall vacate an award where: (1) The award
was procured by corruption or fraud; (2) there was evident par-
tiality by an arbitrator appointed as a neutral or corruption in
any of the arbitrators or misconduct prejudicing the rights of
any party; (3) the arbitrators exceeding [exceeded] their powers
and the award cannot be corrected without affecting the merits
of the decision upon the controversy submitted; (4) the arbi-
trators refused to postpone the hearing upon sufficient cause
being shown therefor or refused to hear evidence material to
the controversy or otherwise so conducted the hearing, contrary
to the provisions of section 6 [34-4-2-6] of this act, as to preju-
dice substantially the rights of a party; or (5) there was no
arbitration agreement and the issue was not adversely deter-
mined in proceedings under section 3 [34-4-2-3] and the party
did not participate in the arbitration hearing without raising the
objection; but the fact that the relief was such that it could not
or would not be granted by a court of law or equity is not
ground for vacating or refusing to confirm the award.
(b) An application under this section shall be made within
ninety [90] days after the mailing of copy of the award to the
applicant, except that, if predicated upon corruption or fraud or
other undue means, it shall be made within ninety [90] days
after such grounds are known or should have been known.
29
(c) In vacating the award on grounds other than stated in
clause (5) of subsection (a) of this section the court may order a
rehearing before new arbitrators chosen as provided in the
agreement, or in the absence thereof, by the court in accord-
ance with section 4 [34-4-2-4], or, if the award is vacated on
grounds set forth in clauses (3) and (4) of subsection (a) of this
section the court may order a rehearing before the arbitrators
who made the award or their successors appointed in accord-
ance with section 4 [34-4-2-4] of this act. The time within
which the agreement requires the award to be made is applica-
ble to the rehearing and commences from the date of the or-
der.
(d) If the application to vacate is denied and no motion to
modify or correct the award is pending, the court shall confirm
the award. [Acts 1969, ch. 340 § 13, p. 1429.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Civil Action No. 81-70156
KENNETH K. KENNARD,
Plaintiff
vs.
UNITED PARCEL SERVICE, INC. and LOCAL 243
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
Defendants.
Excerpt of proceedings had in the above-entitled matter be-
fore the Honorable RALPH B. GUY, JR., United States Dis-
trict Judge, at Detroit, Michigan, on Wednesday, September
16, 1981.
Compiler's note. The bracketed word “exceeded” was inserted by the
compiler.
30
APPEARANCES:
MICHAEL L. PITT, Esq.
Appearing on behalf of the Plaintiff.
JOHN P. HANCOCK, JR., Esq.,
Appearing on behalf of Defendant
United Parcel Service, Inc.
GERRY M. MILLER, Esq.,
Appearing on behalf of Defendant
Local 243 International Brotherhood
of Teamsters
Detroit, Michigan
Wednesday, September 16, 1981
3:00 o'clock P.M.
THE COURT: Very well.
The court has before it a most interesting motion brought by
the defendants in a 301 action.
The plaintiff in this case was discharged, his discharge was
taken to arbitration, and the arbitration upheld the discharge.
Plaintiff subsequently filed this action, claiming a breach of a
duty of fair representation, making a claim against both the
union and the employer, and seeking by implication at least to
upset the arbitration award.
Under such facts, it appears clear that this court must now
look to the recent Supreme Court decision of UPS v. Mitchell,
which the court only has a Supreme Court Reporter citation
for, and that is 101 Supreme Court 1559, an April 20, 1981
decision of the United States Supreme Court.
This suit was filed on January 15, 1981; so the decision in
Mitchell came some three months and five days after the litiga-
tion here was filed.
The holding in Mitchell that is relevant to the determination
of this issue revolves around the fact that the Supreme Court is
stating that in an employer-employee grievance situation where
the grievance proceeds to arbitration and the employee seeks
31
to have, in connection with 301 relief, the arbitration award set
aside, that insofar as statutes of limitations are concerned, that
courts should look to the most analogous state statute.
The Michigan statute for the setting aside of arbitration
awards provides a twenty-day limitation period. A fair reading
of that rule provision in conjunction with the statute that it
inter-relates with would indicate that this plaintiff in this case
could not have availed himself of that procedure. But the
Supreme Court deals with that in Footnote 3 of the decision in
Mitchell where it concludes that the fact that a given plaintiff
could not avail himself of s statutory provision for the setting
aside of arbitration awards does not mean that it still is not the
most analogous statute.
So I think we have a situation that, in prospective applica-
tion, will require this court to apply a twenty-day statute of
limitations insofar as this type of action is concerned, unless
such twenty-day period should be attacked successfully on
other grounds. For the moment, of course, we don’t have to
deal with that.
The additional relevant fact insofar as this litigation is con-
cerned is that in 1978, the Sixth Circuit Court of Appeals in the
decision of Smart v. Ellis Trucking Company, reported at 580
F.2d 215, had ruled that in 301 actions in the context of an
action which had gone to arbitration and where the employee
seeks by implication at least to upset the arbitration award, that
the applicable statute of limitations is three years. And in
reaching that decision, the Sixth Circuit Court of Appeals relies
on Michigan cases which are cited in the opinion at page 217 of
the Court of Appeals’ decision.
So it appears clear that the effect of Mitchell is to reverse
that part of the Smart decision which said that a three-year
statute of limitations is applicable to a fact situation such as we
have here.
That is even clearer when one reads the Court of Appeals’
decision that preceded the Supreme Court case in the Second
32
Circuit in which they specifically reference the Sixth Circuit's
decision in Smart.
So no analysis would be reasonable other than the fact that
Mitchell in effect has overruled Smart.
The question then becomes: Should the Mitchell decision
be applied retroactively, it having been rendered some three
months and five days subsequent to the initiation of this
litigation.
In that regard, the defendants argue several things, includ-
ing the fact that there is not intimation in Mitcheli that it
shouldn't be applied retroactively, that applying the test of
retroactivity as the Supreme Court has applied it, that this
does not meet the test; and that the plaintiff in effect was on
notice, because the matter was in effect before the court on a
petition for certiorari, that this issue could be decided
adversely to him.
The court must then evaluate the question of whether
Mitchell should be applied retroactively to this fact situation.
In considering whether it should be applied retroactively, the
court would note that this suit was brought approximately sixty
days after the copy of the arbitration decision or its effect was
made known to the plaintiff. So we are dealing with relatively
timely actions as that phrase would be used in the abstract
without attempting to tie it in or reference it to any particular
statutory or rule provision. This is not the case where an indi-
vidual slept on his rights for any protracted period of time.
The court believes that the best guidance in terms.of
whether to apply this decision retroactively is found in Chevron
Oil Company v. Huson, reported at 404 U.S. 97, where the
court sets forth three criteria for evaluating whether a decision
should be retroactively applied. And those criteria are in gen-
eral: one, whether the decision in question established a new
principle of law either by overruling clear past precedent on
which litigants may have relied or by deciding an issue of first
impression whose resolution was not clearly foreshadowed;
33
two, a weighing of the merits and demerits by looking to the
prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its opera-
tion; and, finally, weighing the inequities imposed by retro-
active application.
In applying the three criteria to the facts in this case, this
court concludes as follows:
First, insofar as the law in the Sixth Circuit is concerned,
this decision in Mitchell clearly overrules a clearcut relatively
recent Sixth Circuit opinion as to what the applicable statute of
limitations is. Defendants attempt to counter the effect of that
by stating that there was a split in the circuits and, therefore, it
cannot be said that the plaintiff have relied on the Sixth
Circuit and Michigan authority in that regard.
The second criteria, looking to the prior history of the rule in
question, is somewhat difficult of application in this case
because it is not clear precisely what the rule in question is. If
the rule in question is the beneficial aspect of the timely and
speedy resolution of labor disputes. then certainly an applica-
tion of an analogous state statute of limitations which would
have a short period of time would be consistent with the
Mitchell decision and would lead us to consideration of the
application retroactively of the Michigan twenty-day statute.
The other side of that coin, however, whether retroactive
operation will further or retard its operation, is really not sig-
nificant in this case because, first of all, we did have timely
resort to the courts here. The plaintiff resorted quicker than he
would have had to in the state of New York, which is what the
Supreme Court was dealing with in the Mitchell decision, to
wit, a ninety-day limitation period in that case. So we actually
have a plaintiff acting faster than he would have had to act in
the case that the Supreme Court decided.
_ Further, insofar as actions that are already completed are
‘concerned, it does not appear that the decision made by the
court in this case as to retroactivity will either retard or ad-
34
vance operation of the principle in question.
Lastly, the court is asked to weigh the equities in question.
And the court finds that considerable equities should be
afforded to this plaintiff for bringing an action as quickly as it was
brought, to wit, approximately sixty days; and that he would
have justifiably been entitled to rely on the holding in the Smart
decision as well as the Michigan cases on which Smart relies,
dictating a three-year statute of limitations in the state of Michi-
gan in that regard.
When the three criteria are applied in toto to the facts of this
case, this court concludes that Mitchell should not be applied
retroactively to this case, because the equities weigh heavily in
favor of the plaintiff. There was a specific overruling of a Sixth
Circuit decision dealing with this precise same issue, and the
court does not see the purpose of the rule either being particu-
larly furthered or retarded by the failure to apply retroactively
the Mitchell decision to this specific case.
Accordingly, the court will deny the motion of the union and
the employer for an order of dismissal based upon the statute of
limitations for the reasons indicated.
The plaintiff, having prevailed, should present a suitable
order to the court for entry, referencing the fact that the court
gave its reasons in a bench opinion this date.
I thank the parties. Your briefs were good; your arguments
were helpful.
(The hearing in the within-entitled was thereupon con-
cluded.)
CERTIFICATE
I, Marian L. Olden, Official Court Reporter, do hereby cer-
tify that I reported in stenotype the foregoing proceedings had
in open court in the within-entitled matter before the Honor-
able RALPH B. GUY, JR., United States District Judge, at
Detroit, Michigan, on Wednesday, September 16, 1981; and
that the foregoing transcript, consisting of eight (8) type-written
35
pages, constitutes a full, true and correct transcript of an ex-
cerpt of my said stenotype notes.
/s/ MARIAN L. OLDEN
MARIAN L. OLDEN RPR-CSR
Official Court Reporter
Dated: Detroit, Michigan
September 23, 1981
uoNIsodd¢
Office - Supreme Court, U.S.
; FILED
No. 81-1201 JAN 2% 1962
ALEXANDER L. STEVAS,
IN THE CLERK
Supreme Court of the United States
OCTOBER TERM, 1981
JOSEPH A. DAVIDSON,
Petitioner,
Vv
ROADWAY EXPRESS, INC.,
Respondent.
ON PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF FOR RESPONDENT IN OPPOSITION
JAMES E. HUGHES
Counsel of Record
W. WILLIAM WEEKS
1100 Merchants Bank Building
Indianapolis, Indiana 46204
(317) 639-3454
Attorneys for Respondent
Of Counsel:
Sommer & Barnard
1100 Merchants Bank Building
Indianapolis, Indiana 46204
Centra! Publishing Company. Inc.. Indianapolis, IN 46206
TABLE OF CONTENTS
Page
ai ns co onvegeneseseseusbne 1
NS in ccd cu cctentenesoedocese 2
Summary Of Argument............scccccsessseces 2
BEE ved she cece ddescbcdoccecccscsccveesoooces 3
I. Davidson Did Not Present His Primary
ET SE 3
II. Certiorari Is Unnecessary: There Is No
Important, Unsettled Question Of Law Nor
Are The Circuits In Conflict ................ 6
A. Mitchell Assumes Retroactivity ......... 6
B. The Circuits Are Not In Conflict........ 7
III. Mitchell Should Be Applied
ht Meee cegeeeedeedeseseetees i)
A. Mitchell Is Not A Break From
Controlling Prior Precedent ............ 9
B. Retroactive Application Serves The
Purpose Of The Mitchell Rule........... 14
C. Retroactive Application Is Not
TT ict Aides ncubesstnceauaseouss 16
IV. There Are Other Grounds for Affirmance
Of The Seventh Circuit ........ccccccccccees 16
PC. Liat utidadieiaudeecedbwenneeendses bus 19
TABLE OF CASES AND AUTHORITIES
Cases: Page
Abrams v. Carrier Corporation, 434 F.2d 1234 (2d Cir.
Di adbdihbie cid ckdancdeccsededinbusessibeaee 12
Allen v. Amalgamated Transit Ur.on, Local 788, 415
F.Supp. 662 (E.D.Mo. 1976), affd in part and
remanded on other grounds, 554 F.2d 876 (8th_ =f
Cir. 1977), cert. denied, 484 U.S. 891 (1977)..... 12
Allen v. McWilliams Electric Co., Inc., 494 F.Supp. 53
SE, SE tito acu decegcnadendaseneeetes 11
Barbarino v. Anchor Motor Freight Inc., 421 F.Supp.
i TED «. ocoscachscoensesesedase 6
Buchholtz v. Swift & Company, 62 F.R.D. 581 (D.Minn.)
Ds cctnccteleibmananensadeocesemesasdesesss 12
Butler v. Local Union 828, International Brotherhood
of Teamsters, 514 F.2d 442 (8th Cir. 1975) ...... 12
Cannon v. Consolidated Freightways Corp., 524 F.2d
EN EE oki ococidacdeedadensoces ees 18
Carpenters & Millwrights Health Benefit Trust Fund
v. Domestic Insulation Company, 387 F.Supp. 144
i < cccendincspencedewsddnebebicsdes 12
Cash v. Califano, 621 F.2d 626 (4th Cir. 1980) ...... 9
Cheese v. Afram Brothers Co., 32 Wis.2d 320, 145 N.W.2d
DT disc ictcucccesdcenseekedbsatnckestse 12
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)..... passim
Clayton v. ITT Gilfillan, 101 S.Ct. 2088 (1981)...... 18
Coleman v. The Kroger Company, 399 F.Supp. 724
I cXn en ent sc tckcdngcesdusebinakes 12
De Arroyo v. Sindicato de Trabajadores Packinghouse
AFL/CIO, 425 F.2d 281 (1st Cir. 1970), cert.
denied, 400 U.S. 877 (1970) .............0eeeee 12
- TABLE OF CASES AND AUTHORITIES—Continued
Deboles v. Trans World Airlines, Inc., 552 F.2d 1005
(3rd Cir. 1977) cert. denied, 484 U.S. 887 (1977). 18
DeLorto v. United Parcel Service, 401 F.Supp. 408
ere dd da nec ddcedeccesuia 13
Elrod v. Burns, 427 U.S. 347 (1976) .............. 13, 16
Evans v. Triple R Welding & Oil Field Maintenance
Corp., 472 F.2d 713 (5th Cir. 1973)............. 5
Falsetti v. Local Union No. 2026, UMW, 355 F.2d 658
Se Mb Lh cdcnnsceduccdvedsiedadseests 12
Grant v. Mulvihill Brothers Motor Service Inc., 428
of & | > & rere 12
Hamilton v. Consolidated Freightways, 612 F.2d 343
EE Scot ca dendbecgedecesesseosadncs 18
Hardee v. North Carolina Allstate Services, Inc., 537
ee SE ED TED oc occccocdédsanseceesece 18
Helvering v. Tex-Penn Oil Co., 300 U.S. 481 (1987).. 3
Hill v. Aro Corporation, 275 F.Supp. 482 (N.D.Ohio
Dl vitebidnibineakind+ssssoutmeommensenntn 13
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554
SEE + oddidbadeaheestbncceecesessmesbauidsesd 9,18
Hormel v. Helvering, 312 U.S. 552 (1941) ........... 4
Howerton v. J. Christenson Company, 65 L.C. 411,569
Sy NEED Scdvsddaceesscoccoesedeseeeees 13
Kaufman & Broad Home Systems, Inc. v. International
Brotherhood of Firemen and Oilers, AFL/CIO, 607
ff | js 3 arr rr 12
Kennard v. United Parcel Service, No. 81-70156
A hs. cna ac ecmeganecasennsante 8
Kilos v. Nu-Car Driveway Co., No. 78-70521 (E.D.Mich.
Deickudvebadessdbedecaenessseetoassesccones 8
TABLE OF CASES AND AUTHORITIES—Continued
Liotta v. National Forge Company, 629 F.2d 903 (8rd
Cir. 1980), cert. denied 101 S.Ct. 2045-46
Dt isilibiadit dion thececeshocéaneedisoesses 6, 8, 15
Lunceford v. Western Conference of Teamsters, 74 L.C.
I 6 ot con cncvcosueescovase 13
Marino v. Bowers, 657 F.2d 1363 (3d Cir. 1981) ... 13, 16
Maryland ex rel. Levin v. United States, 381 U.S. 41
(1965) (judgment vac. on other grounds 382 U.S.
Eek ca ccedadencasdaebesdeseones 4
Melendy v. United States Postal Service, 589 F.2d 256
Cee GE cach EUG 6 cccccconccccescccoscese 18
Mikelson v. Wisconsin Bridge & Iron Company, 359
F.Supp. 444 (W.D.Wisc. 1978) ................. 12
Miller v. Avirom, 384 F.2d 319 (D.C. Cir. 1967)..... 5
Milton v. Wainright, 407 U.S. 371 (1972) ........... 9
Motor Coach Employees v. Lockridge, 403 U.S. 274
SEE kind civecsndnyedesesetedeesesesote 18
Payne v. McLemore’s Wholesale and Retail Stores, 654
i e, SD «ccscevesoostsdesceces 5
Pizzuto v. Hall’s Motor Transit Company, 409 F.Supp.
in. cacupedeseedeeduacesensee 6
Price v. Southern Pacific Transportation Company,
586 F.2d 750 (9th Cir. 1978) ..............2005- 7
Ramey v. Harber, 589 F.2d 753 (4th Cir. 1978) .... 13, 16
Reliford v. Eastern Coal Corporation, 260 F.2d 447
(6th Cir. 1958), cert. denied, 359 U.S. 958 (1959) 12
Robbins v. Newman, 481 F.Supp. 1241 (E.D.Mo. 1979)... 12
Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir.
EG alk Aas aa inee webetevembusdiescuee 12
iv
TABLE OF CASES AND AUTHORITIES—Continued
Sandobal v. Armour and Company, 429 F.2d 249 (8th
B, GE kb ds cbidccccstcococsncenadiomenontes 12
Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891
SY Se 12
Sear v. Cadillac Automobile Co., 654 F.2d 4 (1st Cir.
TEED cccocancbinchbcicovedesdieseeneenen 6
Scott v. Chrysler Corp., 107 L.R.R.M. 3086 (E.D.Mich.
BD 6 océecastspdeesendoceecsesuseseeneees 6, 8
Singer v. The Flying Tiger Line, Inc., 652 F.2d 1349
Gale Ga. GI Pee kccccccencaccadiventicas 3, 5, 7, 8
Singleton v. Wulff, 428 U.S. 106 (1976) ............. 3
Smart v. Ellis Trucking Company, Inc., 580 F.2d 215
(6th Cir. 1978), cert. denied 440 U.S. 958 (1979). 12
Teamsters Local 135 v. Jefferson Trucking Co., 628
F.2d 1023 (7th Cir. 1980), cert. denied 449 U.S.
SEP GSE ccccccckoseececcéeccuedanaeeeene 4,6
Teamsters Local Union No. 249 v. Motor Freight
Express, Inc., 356 F.Supp. 724 (W.D.Pa. 1973).. 14
Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476,
PR FL rr ee 12
UAW v. Hoosier Cardinal Corp., 383 U.S. 696
Siesccagestocesdscoeetesooécesenanennan passim
United Mine Workers v. Jones & Laughlin Steel Corp.,
378 F.Supp. 1206 (W.D.Pa. 1974) .............. 13
United Parcel Service, Inc. v. Mitchell, 101 S.Ct. 1559
cs decceescébeddede « 0occtasheeiedeeal passim
United Steelworkers v. American Manufacturing Co.,
ee Ws Se GE ccnecscnssccecsodsassecnans 15
United Steelworkers v. Warrior and Gulf Navigation
Sa, GED Ge GPO GED Sc occccdcccesocseebeses 15
Vaca v. Sipes, 386 U.S. 171 (1967).............. 9, 17, 18
Vv
TABLE OF CASES AND AUTHORITIES—Continued
Wallace v. American Telephone & Telegraph Co., 460
F.Supp. 755 (E.D.N.Y. 1978) .........cseeeeees 6
Warren v. International Brotherhood of Teamsters, 544
F.2d 384 (8th Cir. 1976) ..........ceeeeeeeeeees 12
Other Authorities
ss cuccduneeuniieoeeeteses 13
EE passim
No. 81-1201
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
JOSEPH A. DAVIDSON,
Petitioner,
v.
ROADWAY EXPRESS, INC.,
Respondent.
ON PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF FOR RESPONDENT IN OPPOSITION
QUESTION PRESENTED
Should this Court grant certiorari in this case to
expressly consider whether the statute of limitations
approved in United Parcel Service, Inc. v. Mitchell, 101
S.Ct. 1559 (1981), should be applied in other pending
actions as it was applied in Mitchell, when:
1. The issue of prospective application was not presented
to the Seventh Circuit;
2. The Mitchell opinion implicitly requires retroactivity;
3. There is no true conflict among the Circuits on the
issue;
1
2
4. The factors that would militate against the normal
retroactive application of judgments are not present; and
5. There are other grounds for affirming the Seventh
Circuit.
STATEMENT OF THE CASE
Roadway Express, Inc. discharged its driver, Joseph
Davidson, after an accident. His discharge was upheld in
arbitration. In 1976, Davidson sued Roadway and
Teamsters Local 135, claiming he was wrongfully
discharged and that the union had not properly
represented him in the grievance process. Roadway’s
motion for summary judgment on the ground that a 90-day
statute of limitations applied and thus barred his
complaint was denied. After Davidson dismissed the union,
leaving Roadway to defend both its discharge and the
union’s representation, Davidson won a jury verdict
against Roadway and an advisory verdict against the
union. On Roadway’s appeal of Davidson’s judgment, the
Seventh Circuit followed this Court’s opinion in United
Parcel Service v. Mitchell, 101 S.Ct. 1559(1981), applied the
90-day statute of limitations that Roadway had earlier
urged on the District Court and reversed. Rehearing was
denied.
SUMMARY OF ARGUMENT
By digging into the briefing in the Seventh Circuit, a fact
not apparent in Joseph Davidson’s Petition For Certiorari
appears: the question of prospective application of the 90-
day statute of limitations chosen in Mitchell was never
presented to the Circuit Court. It should not be heard here
for the first time.
A logical lapse follows the procedural one. In urging the
Court to apply Mitchell only prospectively, Davidson
refuses to recognize that Mitchell itself was retroactive. As
a result, there is no important question of federal law not
settled by this Court. Moreover, there is no conflict among
the circuits. Davidson’s proposed vehicle of conflict, Singer
v. The Flying Tiger Line, Inc., 652 F.2d 1349 (9th Cir. 1981),
is a product of its district court record. Even if the Seventh
Circuit had considered non-retroactivity in this case, the
results of these different records are not contradictory.
Davidson is left with the Supreme Court, three circuits and
a number of district courts on one side against one opinion
from one district court on the other. That lineup is not a
conflict; it is one errant district court.
Turning to the merits of Davidson’s petition, those
considerations that force a court from the usual path of
retroactive application of judgments detailed in Chevron
Oil Co. v. Huson, 404 U.S. 97 (1971) are absent. The key to
Davidson’s argument, UAW v. Hoosier Cardinal
Corporation, 383 U.S. 696 (1966), has not been overruled by
Mitchell because Hoosier Cardinal did not concern the
wrongful discharge/tainted arbitration claim that
Davidson presented.
Finally, even if the Seventh Circuit erred on the
application of Mitchell, other issues presented to that Court
that were not considered in its opinion would suggest
ultimate affirmance and thus make a grant of certiorari
inadvisable.
ARGUMENT
I. Davidson Did Not Present His Primary Argument
Below
In Singleton v. Wulff, 428 U.S. 106 (1976), this Court
stated that “i]t is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon
below.” 428 U.S. at 120. Among the most important reasons
for this accepted precept of judicial administration are
those noted in Helvering v. Tex-Penn Oil Co., 300 U.S. 481
(1937). In Tex-Penn, the tax commissioner sought to argue
in support of his position before this Court a construction of
a tax provision not advocated before either the Board of
Tax Appeals or the Third Circuit (nor, in fact, raised in his
4
petition for certiorari). The effort was rebuffed:
The commissioner’s notices of deficiency do not
suggest the construction for which he now contends.
He sought no ruling upon the question from the board
or the lower court and is therefore not entitled to have
it decided here. Helvering v. Minnesota Tea Co., 296
U.S. 378. The taxpayers were entitled to know the
basis of law and fact on which the commissioner
sought to sustain the deficiencies. His failure earlier to
present the question leaves this court without the
assistance of decision below.
300 U.S. at 498.
Certiorari had been granted in Mitchell when Davidson
filed his principal brief in the Seventh Circuit. And at that
time the Seventh Circuit had already retroactively applied
a 90-day statute of limitations.' He could have raised his
argument of prospectivity as an alternative safety net in his
briefs or in his Petition for Rehearing to the Seventh
Circuit.? But he made no such claim, and under the general
rule of this Court, he is therefore precluded from now
raising what is the principal argument of his petition.
Inevitably, cases have arisen in which appellate courts
have felt constrained to make exception to the general rule
of preclusion. Thus, if an appellate court, in its discretion
(Singleton, supra) determines that “the obvious result” of
application of the rule “would be a plain miscarriage of
justice”, Hormel v. Helvering, 312 U.S. 552, 558 (1941), the
barrier is removed.
Although it is Davidson’s burden to demonstrate why he
should be granted the exception, he ignores the issue. On
the record there is nothing about the particular
! Teamsters Local 135 v. Jefferson Trucking Co., 628 F.2d 1023 (7th Cir.
1980), cert. denied 449 U.S. 1125 (1981).
2 A procedure approved in Maryland ez rel. Levin v. United States, 381
useen , 58 n. 38 (1965) (judgment vac. on other grounds, 382 U.S. 159
5
circumstances of this appeal that justifies an exception. As
noted, the timing of the Mitchell decision relative to the
progress of this action is an insufficient excuse. Davidson
has hinted about problems with his attorneys,’ but the
change of counsel which occurred in Miller v. Avirom, 384
F.2d 319 (D.C. Cir. 1967) did not excuse the failure to raise
the yuestion below.
Davidson’s argument, moreover, fails another important
test. A reviewing court need not consider the possibility of a
miscarriage of justice unless the party seeking to raise a
new argument “would undoubtedly have prevailed” on that
ground in the court below. Payne v. McLemore’s Wholesale
and Retail Stores, 654 F.2d 1130, 1146 (5th Cir. 1981);
Evans v. Triple R Welding & Oil Field Maintenance Corp.,
472 F.2d 713, 716 (5th Cir. 1973). Davidson does not ever
address this issue.
Finally, it is ironic that the principal authority on which
Davidson relies for his allegation of circuit conflict, Singer
v. The Flying Tiger Line, Inc., 652 F.2d 1349 (9th Cir. 1981),
notes several reasons for its ruling that Mitchell would not
be applied to bar Singer’s action. The first has a familiar
ring:
Neither FTL nor ALPA [the union] ever asserted in
district court that the shorter statute contained in
§1288 was applicable to this case, and ordinarily we
will not hear claims that are advanced for the first
time on appeal.
652 F.2d at 1353.
Davidson offers no reason that this court should ignore its
general rule and hear his newly adopted retroactivity
argument.
8 Application For A Stay Of The Effect Of The Mandate Of The United
os _ Of Appeals For The Seventh Circuit, served December
II. Certiorari Is Unnecessary: There Is No Important,
Unsettled Question Of Law Nor Are The Circuits
In Conflict
A. Mitchell Assumes Retroactivity
Like the failure to deal with the fact that retroactivity
was not argued below, Davidson does not consider another
obvious given: Mitchell is itself retroactive in operation and
thus implicitly confirms the answer a number of lower
courts‘ have given to what Davidson considers an unsettled
question.
“Retroactivity” is an issue in the petition for certiorari
only because the District Court made the wrong choice
when given the opportunity to join those courts.® This case
is unlike Davidson’s authority on retroactivity, Chevron Oil
Co. v. Huson, 404 U.S. 97 (1971).* There was nochallenge in
Chevron to timeliness at the beginning of the action. It was
only after an unrelated Supreme Court decision that
applied state tort remedies rather than admiralty remedies
to personal injuries occurring on off-shore oil rigs — a
fortuitous, unanticipated intervention — that the
defendant raised the issue of timeliness. Despite Davidson’s
implication, the 90-day limitations issue did not spring full-
grown on this case just before decision. Roadway urged
4 Sear v. Cadillac Automobile Co., 654 F.2d 4 (1st Cir. 1981), Liotta v.
National Forge Company, 629 F.2d 903 (3rd Cir. 1980), cert. denied
101 S.Ct. 2045-46 (1981), Teamsters Local No. 135 v. Jefferson
Trucking Co., 628 F.2d 1023 (7th Cir. 1980), cert. denied 449 U.S. 1125
(1981), Scott v. Chrysler Corp., 107 L.R.R.M. 3086 (E.D.Mich. 1981),
Pizzuto v. Hall’s Motor Transit Company, 409 F.Supp. 427 (E.D.Va.
1976), Barbarino v. Anchor Motor Freight Inc., 421 F.Supp. 1003
(W.D.N.Y. 1976), Wallace v. American Telephone & Telegraph Co.,
460 F.Supp. 755 (E.D.N.Y. 1978), and the pre-1976 cases cited at p. 13.
5 Davidson attempts to work some equitable favor with his phrasing of
the question presented: “Whether the Court . .. erred in applying...
Mitchell . . . to time bar the petitioner's claim after the trial court had
entered judgment in his favor” (Emphasis added). On this issue, the
trial is an unfortunate irrelevancy, an effort Roadway attempted to
avoid with its Motion For Summary Judgment.
* See pp. 13-14, infra.
7
that period upon the District Court and gave it authority
for that choice.
Finally, had there been a few months difference in the
similar tracks of the Second and Seventh Circuits, and had
the Davidson case been the vehicle selected to affirm the
Seventh Circuit’s choice of a 90-day period (rather than
reverse the Second Circuit’s choice of a six year period), the
effect of this Court’s affirmance on Davidson (its actual
effect upon Mitchell) would have been exactly the same as
the current effect of the Seventh Circuit’s decision.
B. The Circuits Are Not In Conflict
Davidson bases his request for certiorari on an alleged
conflict among the circuits. He cites as contrary precedent
Singer v. The Flying Tiger Line, Inc., 652 F.2d 1349 (9th
Cir. 1981). But once Singer is extended beyond citation to
analysis, the opinion can be seen as more a result than a
ruling: a result following logically, administratively and
fairly from what the parties had presented to the District
Court and argued tothe Circuit. Mitchell’s characterization
of a discharged employee’s suit questioning the fairness of
the grievance procedure as one challenging an arbitration
award and the consequent selection of a 90-day statute of
limitations was a later-acquired fortuity to the union and
Flying Tiger Lines. They seized that theory before oral
argument in the Circuit after they had “vigorously argued”
in the District Court the proper period was three years.
Moreover, unlike the Seventh Circuit, there was in the
Ninth Circuit a relatively recent opinion that had applied a
three year statute of limitations to a claim against a union
for failing its duty of fair representation.” More important
than the Circuit’s history and further illustrating the
1 Price v. Southern Pacific Transportation Company, 586 F.2d 750 (9th
Cir. 1978), a case that did not invoive a grievance or arbitration award,
selected California's limitations period for an action upon a liability
created by statute.
8
earlier comment that Singer is not a ruling but a result, the
treatment of Mitchell was dictum since the Circuit affirmed
judgments for the union and the company because Singer
failed to allege facts that would withstand summary
judgment motions. Finally — and most important — the
refusal to apply Mitchell was limited to Singer alone:
In this case, however, we decline to apply the rule.
652 F.2d at 1353.8
Davidson has one other conflicts case, Kennard v. United
Parcel Service, No. 81-70156 (E.D.Mich. 1981).° Since the
effect of applying Mitchell in Michigan is a 20-day
limitations period, and since Kennard had filed his case
within 90 days, the District Court’s unhappiness with
retroactivity is understandable. And whatever force that
one opinion might have is blunted by the two other cited
opinions from Eastern District Michigan that reach
contrary conclusions."
Although Davidson aligns the First Circuit with the
Seventh, he does not disclose the Third Circuit’s application
of Pennsylvania’s 90-day statute in Liotta v. National Forge
Company, 629 F.2d 903 (8rd Ci: 1980), cert. denied 101
S.Ct. 2045-46 (1981)."
The only conflict as to the retroactive application of
Mitchell is in the Eastern District of Michigan. That
administrative problem belongs to its judges or at worst the
Sixth Circuit. This Court’s help is unnecessary.
® Throughout this brief, all emphasis is added unless otherwise noted.
® Davidson Br. App. p. 29.
© Scott v. Chrysler Corp., 107 L.R.R.M.3086(E.D.Mich. 1981) and Kilos
v. Nu-Car Driveway Co., No. 78-70521 (E.D.Mich. 1981). This second
opinion is not published and no copy was included in Davidson's
appendix. Roadway obviously will take Davidson's description of it
along with the other two unpublished district court opinions applying
Mitchell retroactively that he cites.
u en Oe en en
9
III. Mitchell Should Be Applied Retroactively
A. Mitchell Is Not A Break From Controlling Prior
Precedent
Davidson argues that the normally’? retroactive reach of
an opinion should be stripped from Mitchell because he
would be unfairly punished for relying upon what was the
law at the time his action accrued without serving any
useful goal. He thus pleads the protection of Chevron Oil
Company v. Huson, 404 U.S. 97 (1971).
Under Chevron he must first show that the law was
different or, in Mr. Justice Stewart’s words, that Mitchell
established “a new principle of law” by “overruling clear
past precedent on which litigants may have relied.” 404
U.S. at 106. As Justice Stewart restated the requirement a
year later in Milton v. Wainright, 407 U.S. 371 (1972):
An issue of the “retroactivity” of a decision of this
Court is not even presented unless the decision in
question marks a sharp break in the web of the law.
The issue is presented only when the decision
overrules clear past precedent. (citing cases) (Stewart,
J., dissenting.)
407 U.S. at 382 n. 2.
Davidson’s chief evidence that the law was different in
the spring of 1976 is UAW v. Hoosier Cardinal
Corporation, 383 U.S. 696 (1966), which Davidson
characterizes as an opinion approving the application of a
six year contracts statute of limitation “to cases arising in
Indiana under 29 U.S.C. §185”.'* (Davidson Br. p. 10)
2 Cash v. Califano, 621 F.2d 626, 628-29 (4th Cir. 1980). Davidson bears
the burden of establishing “the necessary equitable predicate” to
avoid retroactivity.
8 29 U.S.C. §185 is the code citation for Section 301 of the Labor
Management Relations Act which, through judicial crafting, (see
Vaca v. Sipes, 386 U.S. 171 (1967), Hines v. Anchor Motor Freight,
Ine., 424 Us. S. 554 (1976)), authorizes a hybrid suit that attempts to
undo an arbitration award by charging, as here, wrongful discharge
(Footnote continued on following page)
10
Hoosier Cardinal did not so hold. It was not overruled by
Mitchell; it might, under certain circumstances, still be
good law as it relates to Indiana. There is therefore no break
from past precedent and the Chevron cloak evaporates.
Davidson’s faulty assumption is that Hoosier Cardinal —
and Mitchell — selected one statute of limitations for all
cases brought under §301. But those opinions make nosuch
selection; rather each considers the particular type of
action among a variety of claims that may be pursued
under the broad reach of §301.
Hoosier Cardinal did not involve an arbitration. It was
an action by a union against an employer for accumulated
vacation pay claimed to be due under the collective
bargaining agreement. This court repeatedly restricted
the statute of limitations choice to those facts:
Hence, this §301 suit may fairly be characterized as
one not exclusively based upon a written contract.
*_* *
There may, of course, be §301 actions that can only be
characterized fairly as based exclusively upon a
written agreement.
Accordingly, we accept the District Court’s
application of the six-year Indiana statute of
limitations to this action.
383 U.S. at 707.
** *
Whether other §301 suits different from the present
one might call for the application of other rules on
timeliness, we are not required to decide, and we
indicate no view whatsoever on that question.
383 U.S. at 705 n. 7.
by an employer and unfair representation by the union in the protest
of that discharge. Despite the variety of claims which can be pursued
under §301, these challenges to arbitration are commonly referred to
generically as “301 Cases.”
11
The Mitchell opinion similarly restricts itself to the type
of the §301 action there at issue:
We are called upon in this case to determine which
state statute of limitations period should be borrowed
and applied to an employee’s action against his
employer under §301(a) of the Labor Management
Relations Act.
101 S.Ct. at 1561.
Mr. Justice Rehnquist then considered the precise
question Davidson presents; whether Hoosier Cardinal
controlled the statute of limitations issue considered in
Mitchell and thus whether Mitchell overruled Hoosier
Cardinal:
The particular choice made in Hoosier Cardinal to
borrow the limitations period for oral contracts is not
binding in this case, not only because the issue in
Hoosier Cardinal was between a 6-year period for oral
contracts and a 20-year period for written contracts,
but also becausé the claim in Hoosier Cardinal was not
one to overturn an arbitration award.
101 S.Ct. at 1564, n. 5.
Davidson’s failure in his treatment of Hoosier Cardinal
to appreciate this Court’s implicit admonition that there is
no such thing as one “301 Case” continues in his citation of a
“long line of cases” from which “the six year rule”
“justifiably relied upon by Davidson derives . . .”"
(Davidson Br. p. 11)
He cites 21 cases in an attempt to illustrate the settled
law from which Mitchell made the sharp break. But of the
21, three are actions by trustees of pension funds to recover
contributions from employers.'® Three were brought by
i Aside from its legal infirmities the claim has some temporal
problems. Of the 17 opinions selecting a contracts statute of
limitations he cites in support, nine were issued after he filed his
action, making his reliance a bit visionary.
% Allen v. McWilliams Electric Co., Inc., 494 F.Supp. 53(N.D.II1. 1980);
(Footnote continued on following page)
12
employees from merged companies against the union,
claiming discrimination in the combined seniority list.'*
Another was a company suing a union for work stoppages”
and another was not even a §301 case. It concerned the
transfer of responsibility for retirement benefits from the
employer to the union.’® None of these cases concerned
arbitration. Five more brought by employees in no way
involved an arbitration” and another six concerned the
failure to pursue a grievance to arbitration.”
That leaves two cases. Smart v. Ellis Trucking Company,
Inc., 580 F.2d 215 (6th Cir. 1978), cert. denied 440 U.S. 958
(1979), was decided two years after Davidson filed his case.
Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476, 134
N.W.2d 393 (1965) did choose a six year period but noted it
was “not ideal”, “excessive”.
Stripped of Hoosier Cardinal and virtually all of the
cases that supposedly repeated it, Davidson has no “clear
Robbins v. Newman, 481 F.Supp. 1241 (E.D.Mo. 1979); Carpenters &
Millwrights Health Benefit Trust Fund v. Domestic Insulation
Company, 387 F.Supp. 144 (D.Col. 1975).
1% Warren v. International Brotherhood of Teamsters, 544 F.2d 334 (8th
Cir. 1976); Butler v. Local Union 823, International Brotherhood of
Teamsters, 514 F.2d 442 (8th Cir. 1975); Allen v. Amalgamated Transit
Union, Local 788, 415 F.Supp. 662 (E.D.Mo. 1976), affd in part and
remanded on other grounds, 554 F.2d 876 (8th Cir. 1977) cert. denied
434 U.S. 891 (1977).
17 Kaufman & Broad Home Systems, Inc. v. International Brotherhood of
Firemen and Oilers, AFL/CIO, 607 F.2d 1104 (5th Cir. 1979).
'%® Coleman v. The Kroger Company, 399 F.Supp. 724 (W.D.Va. 1975)
'* Abrams v. Carrier Corporation, 434 F.2d 1234 (2d Cir. 1970);
Sandobal v. Armour and Company, 429 F.2d 249 (8th Cir. 1970);
Reliford v. Eastern Coal Corporation, 260 F.2d 447 (6th Cir. 1958),
cert. denied, 359 U.S. 958 (1959); Grant v. Mulvihill Brothers Motor
Service Inc., et al., 428 F.Supp. 45 (N.D.IIl. 1976). Cheese v. Afram
Brothers Co., 32 Wis.2d 320, 145 N.W.2d 716 (1966).
® Sanderson v. Ford Motor Co., 483 F .2d 102 (5th Cir. 1973); De Arroyo
Sindicato de Trabajadores Packinghouse AFL/CIO, 425 F.2d 281 (ist
Cir. 1970), cert. denied, 400 U.S. 877 (1970); Falsetti v. Local Union No.
2026, UMW, 355 F.2d 658 (8rd Cir. 1966); Mikelson v. Wisconsin
Bridge & Iron Company, 359 F Supp. 444 (W.D.Wisc. 1973); Sciaraffa
. Co., 310 F.Supp. 891 (D.Maine 1970); Buchholtz v.
Swift & Company, 62 F.R.D. 581 (D.Minn. 1973).
tol
i
13
past precedent” from which a “sharp break” could occur.?!
In relying totally upon Hoosier Cardinal, Davidson does
not even argue the alternative of Chevron’s first
requirement — that Mitchell decided “an issue of first
impression whose resolution was not clearly
foreshadowed.” (404 U.S. at 106) It would have been
difficult to do so; the warnings were there. In 1969, five
years after the trial court’s decision in Hoosier Cardinal,”
Indiana adopted the Uniform Arbitration Act with the 90-
day limitations period to provide a shorter alternative than
was available in 1964.2 And although Hoosier Cardinal
did not involve arbitration and thus likely would have been
decided the same way in 1969, it had clearly warned that
the policies of labor relations were best served by short
limitations periods for court actions that in some way
would intrude into the private bargaining process. By the
time Davidson filed his complaint, courts in a number of
jurisdictions had applied the limitations period for
challenging arbitration awards. Hill v. Aro Corporation,
275 F.Supp. 482 (N.D.Ohio 1967); Howerton v. J.
Christenson Company, 65 L.C. 911,569 (N.D.Cal. 1971);
Lunceford v. Western Conference of Teamsters, 74 L.C.
10,160 (C.D.Cal. 1974); United Mine Workers v. Jones &
Laughlin Steel Corp., 378 F.Supp. 1206 (W.D.Pa. 1974);
DeLorto v. United Parcel Service, 401 F.Supp. 408 (D.Mass.
21 For an example of a break that has been perceived to be sharp enough
to invoke Chevron, compare Marino v. Bowers, 657 F.2d 1363 (3rd Cir.
1981) and Ramey v. Harber, 589 F.2d 753 (4th Cir. 1978) which
refused retroactive application of this Court’s ban of patronage
dismissal in Elrod v. Burns, 427 U.S. 347 (1976). Both cases noted the
strong protests in the Elrod dissents, e.g.:
The Court holds unconstitutional a practice as old as the
Republic, a practice which has contributed significantly to the
democratization of American politics. (427 U.S. at 376, Powell,
J., dissenting.)
2 UAW v. Hoosier Cardinal Corp., 235 F.Supp. 183 (S.D.Ind. 1964).
* IND. CODE §34-4-2-13.
14
1975).
In short, although this Court’s approval in Mitchell had
not yet been published, not only was there no clear,
controlling precedent to the contrary, there was ample
indication that in those states that had adopted the
Uniform Arbitration Act or an equivalent, an action
attempting to override arbitration via §301 would face a 90-
day statute of limitations.
Davidson thus fails the first of the three Chevron tests.
B. Retroactive Application Serves The Purpose Of The
Mitchell Rule
The Chevron Court, secondly, indicated that retroactive
application should not be abandoned without weighing:
“... the merits and demerits in each case by looking to
the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will
further or retard its operation.” (Citing Linkletter v.
Walker, 381 U.S. 618, 629 (1965).)
404 U.S. at 106-07.
The Mitchell rule was intended to enhance the likelihood
of “relatively rapid disposition of labor disputes.” Mitchell,
101 S.Ct. at 1564 (1981). This court believed that the
dispute resolving mechanism — the arbitration process —
which was challenged both in Mitchell and in this case
“could easily become unworkable if a decision which has
given ‘meaning and content’ to the terms of an agreement,
and even affected subsequent modifications of the
agreement could suddenly be called into question as much
as six years later.” 101 S.Ct. at 1564. The “undesirability of
the results of the grievance and arbitral process being
suspended in limbo for long periods,” 101 S.Ct. at 1565, was
emphasized.
%* See also Teamsters Local Union No. 249 v. Motor Freight Express, Inc.,
356 F.Supp. 724 (W.D.Pa. 1973) (union attempt to set aside result of
grievance and select another arbitrator).
15
_ Long before Mitchell, particularly in the Steelworkers
Trilogy, this Court had emphasized the deference due
private collective bargaining and, specifically, the
arbitration process:
Section 203(d) of the Labor Management Relations
Act, 1947, 61 State 154, 29 U.S.C. §173(d), states,
“Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable method
for settlement of grievance disputes arising over the
application or interpretation of an existing collective-
bargaining agreement. . . .” That policy can be
effectuated only if the means chosen by the parties for
settlement of their differences under a collective
bargaining agreement is given full play.
United Steelworkers v. American Manufacturing Co., 363
U.S. 564 at 566 (1960).
The present federal policy is to promote industrial
stabilization through the collective bargaining
agreement. (citing case) A major factor in achieving
industrial peace is the inclusion of a provision for
arbitration of grievances in the collective bargaining
agreement.
United Steelworkers v. Warrior And Gulf Navigation Co.,
363 U.S. 574 at 578 (1960).
The support given this policy by a 90-day statute of
limitations was noted by Judge Higginbotham in Liotta v.
National Forge Company, supra:
The result we reach comports with the general
federal policy favoring arbitration as a means of
resolving labor disputes, United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363 U.S.
574, 578 (1960), and with the federal labor policy that
favors the application of shorter limitations period.
629 F.2d at 906.
Thus, limiting Mitchell to prospective application would
16
give a preferred status to actions that are highly disfavored
to begin with. Prospective application of Mitchell would in
fact achieve the precise evil — more lawsuits than would
otherwise exist — that the Third and Fourth Circuits
wished to prevent by denying retroactive application of
Elrod v. Burns, 427 U.S. 347 (1976), in Marino v. Bowers,
657 F.2d 1363 (3rd Cir. 1981), and Ramey v. Harber, 589
F.2d 753 (4th Cir. 1978).
Rather than “retard its operation”, retroactive
application of Mitchell serves its precise purpose.
C. Retroactive Application Is Not Inequitable
As a final consideration, Chevron suggests that the
possible inequity imposed by retroactive application of a
newly announced rule be weighed. The sharper the break
with past precedent, of course, the greater the concern for
inequity. The Chevron Court was concerned about applying
a statute of limitations to bar a plaintiff when “he could not
have known the time limitation that the law imposed upon
him.” 404 U.S. at 108. By comparison, inequity is of minor
concern here, since the Mitchell rule involved no sharp
break but at worst a choice between rules which had been
applied often before Mitchell and before Davidson filed his
case. Davidson could have known the limitations period
which would, or might govern his action before he filed it.”
Granted that if Mitchell is not limited to the future,
Davidson will not get his job back. But lack of success in a
lawsuit is not tantamount to inequity.”*
In short, the third Chevron factor does not add significant
weight on Davidson’s side of the retroactivity balance.
% See cases cited, pp. 13, supra.
2% Prospective application of the Mitchell rule would, moreover, be
inequitable to Roadway, which sought summary judgment on a
statute of limitations theory in the trial court and has pursued that
theory through the Seventh Circuit and this Brief In Opposition.
17
IV. There Are Other Grounds for Affirmance Of The
Seventh Circuit
Roadway originally raised six issues in its appeal of the
trial court’s judgment in this case. Exercising the judicial
administration that would have pleased Justice
Frankfurter, the Court addressed only one that could be
decided without considering the whole — and convoluted —
record. The very most, therefore, Davidson can now
achieve is a remand to the Seventh Circuit for further
consideration; the case cannot be resolved for him on
certiorari. However of the remaining five issues, three
provide alternative grounds for affirming the Seventh
Circuit.2’
First, Roadway argued that it cannot be subject to
federal jurisdiction under §301 in a claim to challenge
arbitration in the absence of the union as a co-defendant;
that the dismissal of Local 135 destroyed the jurisdictional
base. In making this argument, Roadway traced what it
saw to be the Topsy-like development of Vaca v. Sipes, 386
U.S. 171 (1967), through rulings that lost sight of the
jurisdictional question when dealing with issues of
exhaustion of remedies and apportionment of damage. As
an example of the practical lunacy created, Roadway
pointed out that if it could in fact alone be sued in such
cases, good judgment would require it to adopt a policy of
preparing and monitoring both sides of the grievance
27 There is also one argument made by Davidson before this court that
Roadway believes need not be countered by more than a footnote.
Davidson claims that the limitations period for vacation of
arbitration awards is not an appropriate choice if the alternative is
not a six-year contract statute but a two-year employment agreement
statute. Contrary to his assertions (Davidson Br. p. 21-22), this issue
was presented to the Seventh Circuit in the briefs on his Petition for
Rehearing. Davidson apparently still fails to appreciate that the
central point of Mitchell is its characterization of actions like his as
(Footnote continued on following page)
18
arbitration — an adversarial proceeding —in order to
assure itself of a defensible position on the fair
representation issue of the §301 action it might later face.
In examining the most basic conceptions of the §301 action
and in questioning many of the current §301 opinions,”
Roadway made an argument that cannot be fully briefed in
this context.
The second of the arguments supporting dismissal was
that the undisputed facts of the case establish, as a legal
matter, fulfillment of the union’s duty of fair
representation under the standards of Vaca v. Sipes, supra,
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971),
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976),
and various Circuit Court decisions, including Cannon v.
Consolidated Freightways Corp., 524 F.2d 290 (7th Cir.
1975), Melendy v. United States Postal Service, 589 F.2d 256
(7th Cir. 1978), and Hamilton v. Consolidated Freightways,
612 F.2d 343 (8th Cir. 1979).
A third argument which could alone have justified the
Seventh Circuit’s dismissal order involved Davidson’s
failure to prove a required causation — his failure to offer
any evidence that the arbitration decision which upheld
Roadway’s decision to discharge him would have been
different had the union done what he claimed it should have
done. Decisions in Deboles v. Trans World Airlines, Inc.,
552 F.2d 1005 (38rd Cir. 1977), cert. denied, 434 U.S. 837
(1977), Hardee v. North Carolina Allstate Services, Inc., 537
F.2d 1255 (4th Cir. 1976), and Hamilton v. Consolidated
Freightways, 612 F.2d 343 (8th Cir. 1979), support
Roadway’s position on this issue.
attempts to vacate arbitral awards, not actions for wrongful
discharge. Davidson’s claim is, on the relevant points, factually
indistinguishable from Mitchell’s, and the Seventh Circuit correctly
rejected the two-year statute when it denied rehearing.
2% Roadway contends that Clayton v. ITT Gilfillan, 101 S.Ct. 2088
(1981), did not approve of an employer-only fair representation case
under the circumstances presented by the Davidson case. Mr. Justice
Rehnquist would apparently agree.
19
The above summarized arguments represent clear
alternative grounds for affirming the Seventh Circuit's
order. If any one of them is meritorious, consideration of the
issue Davidson forwards for certiorari is academic.
CONCLUSION
Davidson's petition for writ of certiorari to the Seventh
Circuit should be denied.
Respectfully Submitted,
JAMES E. HUGHES
W. WILLIAM WEEKS
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.