Record and brief — Davidson v. Roadway Express, Inc.

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Office - Supreme Court, U.S.

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.

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