Petition — International Brotherhood of Teamsters v. Edwards

82- 1 05 4 Office-Supreme Court, U.S.

FILED

No. DEC 22 1982

oiiemaaal ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

LOCAL No. 988,

Petitioner,

Vv.

NORMAN E. EDWARDS and BOBBY WAYNE MIZE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES L. HICKS, JR.

HICKS, GILLESPIE & JAMES, P.C.

704E-1341 W. Mockingbird Lane

Dallas, Texas 75247

(214) 630-8621

Attorneys for Petitioner

enaenaer soe

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ab Ane og

® c&ivavto 60

were

QUESTIONS PRESENTED

1. Whether the six-month limitations period contained in

§10(b) of the National Labor Relations Act determines

the timeliness of a suit alleging that a union has breached

the duty of fair representation derived from that Act?

2. If not, whether in a hybrid § 301/breach-of-duty of

fair representation action brought against an employer

and union, the state statute of limitations governing ac-

tions to vacate arbitration awards, which United Parcel

Service, Inc. v. Mitchell, 451 U.S. 56, “borrowed” to de-

termine the timeliness of the claim against the employer,

also determines the timeliness of the claim against the

union? !

3. If issue one is answered in the negative but number

two in the affirmative (applying the state limitation ap-

plicable to actions to vacate arbitration awards), whether

application of such a state statute to the fair representa-

tion claims may be denied solely because the statute ex-

empts labor contracts?

1 As will be addressed hereafter, Questions 1 and 2 were also

presented in the Petition for Writ of Certiorari in United Steel-

workers of America, et al. v. Donald C. Flowers, et al., case no.

81-2408, which was recently granted by this Court together with

that in Jnternational Brotherhood of Teamsters, etc. v. Delcostello,

case no. 81-2386.

(i)

ii

LIST OF PARTIES

In addition to the parties listed in the caption, Sea-

Land Service, Jnc. was a defendant in the district court

and appellee in the court of appeals.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........

LIST OF PARTIES ............. saeeoseenace ae

TABLE OF AUTHORITIES .

OPINIONS BELOW

JURISDICTION ..

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT ..

I. The §$10(b) Issue ..............

II. The Single Limitations Period Issue

III. The Texas Arbitration Act Issue ........................

CONCLUSION 00.0.0... setencaninmast ialesinasouaabeneneesaies

(iii)

to

iv

TABLE OF AUTHORITIES

CASES Page

Badon v. General Motors, 679 F.2d 93 (6th Cir.

I aoa a cahaser ph deounnstasoa nec sespsasanteipaasurnaietociiaies 8,10

Baker v. Amsted Industries, Inc., 656 F.2d 1245

er Tg caseieosmayesonaniion 11

Cote v. Eagle Stores, Inc., 688 F.2d 32 (7th Cir.

| ae 5

DelCostello Vv. Teamsters, - — _ F. 2d - — _( 4th Cir.

1982), cert. granted, —— U.S. —— .................. 10

Norman E. Edwards and Bobby Wayne Mize v.

Sea-Land Service, Inc., and _ International

Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers, Local 988, (5th Circuit

No. 81-2283; decided June 24, 1982) ; 678 F.2d

Eso ent na ue andrgadantindansaasenaiseenentbnaonaens 1

Fedor v. Hygrade Food Products Corp., 687 F.2d 8

I I occa ence rr acne iniesienionian 10

Flowers v. Local 2602 of United Steelworkers,

pe ef 7 a, os | Sern 4, 5,6,11

Hand v. International Chemical Workers, 681 F.2d

I cscakagmesabuboenss 11

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

(ERR RRA EL Ae AREER Ca eS SOD So 5,9

Johnson v. Railway Express Agency, 421 US.

I ee ac aetada sasseonatnnoidnanads 8

Local 1020 of the United Brotherhood of Carpen-

ters and Joiners of America v. FMC Corp., 658

a I I RI RUUD cicsevescciseeessasicescsniusserees 7

McNutt v. Airco Industrial Gases Division, 687

pp Be ee, ee ee 10

Occidental Life Insurance Co. v. EEOC, 432 U.S.

855 (1977) .......... ee et oe oniadeaneieasnas 13

Rigby v. Roadway Express, Inc., 680 F.2d 342

SINS IID. ac id eaceccan chen Saba cube cinasicaoapbioiiasense 6,10

Sear v. Cadillac Auto Co. of Boston, 654 F.2d 4

(RSIS ETON aCe pah arto oamere 10

Singer v. Flying Tiger Line, Inc., 652 F.2d 1349

III I os cccaun dgtanctnsedcstsddpencinsdieamiooies 11

Vv

TABLE OF AUTHORITIES—Continued

Page

United Parcel Service, Inc. v. Mitchell, 451 U.S.

I ica laclatechdsenpsiactaptinadieasadideainadsaneiindasedsiicdies passim

STATUTES

I ice taeiaiseeaniinnndomaneninniunai 3

Be iy Me PIE IED » cceienscccsincssaceccatutessssoncsdnsoonesstins ss 2

National Labor Relations Act, 29 U.S.C. § 160(b) . 4, 5, 6,

7,8

National Labor Relations Act, 29 U.S.C. § 185........ 3,10

Tex. Rev. Civ. Stat. Ann., Art. 224(a) 2000000000000... 12

Tex. Rev. Civ. Stat. Ann., Art. 287(b) ............000..... 3, 12

Tex. Rev. Civ. Stat. Ann., Art. 5526 —0000000000000000000... 12

Tex. Rev. Civ. Stat. Ann., Art. 5529 0000000. 3, 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

LOCAL No. 988,

Petitioner,

v.

NORMAN E. EDWARDS and BOBBY WAYNE MIZE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers, Local 988, hereby petitions

for a writ of certiorari to the United States Court of

Appeals for the Fifth Circuit, enabling this Court to re-

view the judgment in Norman E. Edwards and Bobby

Wayne Mize v. Sea-Land Service, Inc. and International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers, Local 988 (Fifth Circuit No. 81-2283, decided

June 24, 1982; 678 F.2d 1276).

This petition presents two issues identical to those in

United Steelworkers of America, et al. v. Donald C.

2

Flowers, et al., Case No. 81-2408, in which this Court

has granted a petition for writ of certiorari. Much of

this Petition, therefore, closely tracks that in Flowers.

OPINIONS BELOW

The opinions of the United States District Court for the

Southern District of Texas are not officially reported and

are reprinted as Appendices B and C to this petition. The

judgment of the District Court is reprinted as Appendix

D. The decision of the Court of Appeals for the Fifth

Circuit is reported at 678 F.2d 1276 and is reprinted

as Appendix A. The Order of the Fifth Circuit denying

petitioner’s Petition for Rehearing dated August 25, 1982

is reprinted as Appendix E.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was issued on June 24, 1982. (Appendix A). On

November 10, 1982, Justice White signed an order ex-

tending the time for filing a petition for a writ of cer-

tiorari to and including December 22, 1982 (Appendix

F). This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are reprinted in Ap-

pendix G.

STATEMENT OF THE CASE “

On December 27, 1978, after several years of employ-

ment by Sea-Land Service, Inc., plaintiffs Edwards and

Mize (respondents here) received layoff notices pursuant

to the terms of the collective bargaining agreement in

* This case is here from the district court’s granting of a motion

to dismiss, and the court of appeals’ reversal of that dismissal.

Accordingly, the “facts” recited herein are those alleged in the

complaint and relied upon by both the district court and court of

appeals.

3

effect between Sea-Land and petitioner union. On Jan-

uary 2, 1979, respondents filed contractual grievances

protesting their layoff. On January 15, 1979, Sea-Land

amended the reasons for its layoff notice. On April 1,

1980 respondents received notice that, pursuant to the

collective bargaining agreement, their grievance claims

had been submitted to arbitration and had been denied.

More than a year after that notification, on April 21,

1981, respondents filed suit in the district court asserting

jurisdiction under Section 301 of the National Labor Re-

lations Act, 29 U.S.C. § 185, alleging that. Sea-Land vio-

lated the collective bargaining agreement by laying off and

ultimately dismissing them and that the union breached its

duty of “fair representation” by its manner of represent-

ing them in the contractual arbitration procedure.

Both the union and the company moved to dismiss the

complaint on the grounds that the suit was barred by

applicable limitations. Relying upon United Parcel Serv-

ice, Inc. v. Mitchell, 451 U.S. 56 (1981), the district

court separately granted both motions to dismiss upon

its conclusion that the 90-day period of limitations under

the Texas General Arbitration Act, Tex. Rev. Civ. Stat.

Ann., Article 237(B) or the 3-month period under the

Federal Arbitration Act, 9 U.S.C. § 12, barred the claims.

Plaintiffs appealed to the United States Court of Appeals

for the Fifth Circuit.

The Court of Appeals reversed the district court’s dis-

missal. With respect to the breach of contract claim

against the company, the Court of Appeals rejected ap-

plication of the limitations applied by the district court

“and because Texas has not assigned a specific limitation

to arbitration actions arising from collective bargaining

agreements” applied a Texas 4-year “catch-all” statute

of limitations.* (678 F.2d at 1290).

3 Tex. Rev. Civ. Stat. Ann. Art. 5529.

4

The Court of Appeals also reversed the dismissal of the

breach of fair representation claims against the union.

In doing so the Court of Appeals first concluded that the

breach of fair representation claim was not to be char-

acterized as one to vacate an arbitration award and that

the appropriate characterization was one of a tort action

(678 F.2d at 1292). In reaching that conclusion the

Fifth Circuit expressly adopted the rationale of the Second

Circuit in Flowers v. Local 2602 of United Steelworkers,

671 F.2d 87 at 90 (2d Cir. 1982). In Flowers the Second

Cireuit recognized that “the majority in Mitchell did not

specifically limit the applicability of its decision to an

employee’s claims against his employer” and that “[t]he

Court’s reasoning [in Mitchell] arguably may require

applying the same time limit to causes of action against

the union since the Court found .. . that to prevail

against either the company or the union, petitioners must

not only show that their discharge was contrary to the

contract but must also carry the burden of demonstrating

breach of duty by the union.” (671 F.2d at 90, quoting

Mitchell, 451 U.S. at 62). Admittedly “pressed” by this

“dicta” the Second Circuit found more persuasive the rea-

soning expressed in a solitary dissenting opinion of Jus-

tice Stevens in Mitchell refusing ‘0 apply the limitation

applicable to vacating arbitration awards to the fair rep-

resentation claims.

The Fifth Circuit Court of Appeals also refused to

apply the 6-month § 10(b) limitation suggested by Jus-

tice Stewart in United Parcel Service, Inc. v. Mitchell,

451 U.S. 56 (1981). In doing so, the Fifth Circuit

adopted again the Second Circuit’s rationale in Flowers

that § 10(b) must be rejected because it “relates only to

administrative procedures established by Congress to re-

solve unfair labor practices.” (671 F.2d at 90).

Having applied a separate period of limitations

to the claims against the union and rejected the appli-

cability of the state and federal arbitration statutes

5

and §10(b), the Fifth Circuit applied the Texas two-

year tort limitation to the fair representation claims

against the union and accordingly ruled plaintiffs’ claims

timely. The Court of Appeals reversed the judgment of

dismissal with respect to both the employer and the union

and remanded the claims to the district court for trial

on the merits.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit decision below and that of the Sec-

ond Cireuit in F/owers raise two fundamental questions

in the selection of limitation periods in “hybrid actions”

alleging both breach of collective bargaining agreement

by the employer and breach of duty of fair represen-

tation by a union concerning the manner of its han-

dling a matter submitted to arbitration. By “hy-

brid” we refer to the interdependence of the claims rec-

ognized both in Mitchell, 451 U.S. at 62, and in

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-

71 (1975) where this Court stated that in such matters

“Ttlo prevail against either the company or the Union,

[the plaintiff] must not only show that [the Company’s

action] was contrary to the contract but must also carry

the burden of demonstrating breach of duty by the

Union.” Recently, the Seventh Circuit in Cote v. Eagle

Stores, Inc., 688 F.2d 82, (7th Cir. 1982), relying upon

the Mitchell and Hines decisions recognized the fair rep-

resentation claim as an “indispensable predicate” to the

contract claim against the employer and described the

claims as “inextricably interdependent.”

The first question presented here and in Flowers is

whether the 6-month limitation period contained in § 10

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

(b), applies to duty of fair representation claims. That

question was expressly not resolved by the majority in

Mitchell (at 451 U.S. at 60, n. 2) although Justice Stew-

art would have decided the limitations issue on that basis

6

and Justice Blackman found “much that is persuasive in

Justice Stewart’s analysis” (451 U.S. at 65). The Court

in Mitchell expressly left the question open because the

parties in that case had not addressed it in the courts be-

low. The § 10(b) question is squarely raised here. Fur-

thermore, the resolution of the § 10(b) issue by the Fifth

Cireuit and the Second Circuit in Flowers squarely con-

flicts with the decision by the Sixth Circuit holding that

$10(b) is applicable to these hybrid suits. (/nfra,

p. 8).

If $10(b) is not found applicable, a second question is

critical and begs resolution. The question raised is

whether separate periods of limitations are to be applied

in such “hybrid” actions alleging breach of contract

claims against the employer and the breach of fair repre-

sentation claims against the union. The decision below

and that of the Second Circuit in Flowers virtually con-

cede that their resolution of that issue—applying separate

periods of limitation—is inconsistent with the rationale

of Mitchell. The conclusion is also inconsistent with the

decisions of the Third, Fourth, Sixth, Seventh and

Ninth Circuits.

As a result of the §10(b) issue remaining expressly

open after Mitchell and the unwillingness of several

courts to accept the rationale of Mitchell and require ap-

plication of a single limitation, the circuits are split and

the district courts are all over the lot.‘ Indeed, after the

decision in this case the Fifth Circuit showed that it was

split on this issue. Rigby v. Roadway Express, Inc., 680

F.2d 342 (5th Cir. 1982).

The third issue is more parochial. Assuming that the

Court concludes that a single period of limitations is ap-

plicable to the claims against the employer and the union

(not § 10(b) but instead, that state limitation applicable

‘The Petition for Certiorari in Flowers (at pages 9-11, n, 3)

demonstrated the disarray in the lower courts over these issues.

As shown infra that confusion continues.

7

to vacating arbitration awards) the issue raised is

whether a state general arbitration statute containing a

limitation period for vacating arbitration awards and

which is analogous by general subject matter and con-

forms to the overriding federal labor policy of prompt

resolution of labor disputes may be rejected solely be-

cause it contains an exclusion applicable to collective bar-

gaining agreements. This Court in Mitchell recognized

that the “borrowing” of state limitations periods would

not be exact and that the borrowed limitations would not

always fit “hand-in-glove.” The resolution of this issue

by the court below conflicts with that of the Ninth Cir-

cuit in Local 1020 of the United Brotherhood of Carpen-

ters and Joiners of America vs. FMC Corp., 658 F.2d

1285 (9th Cir. 1981). Resolution of this issue is necessary

to conform the divergent views of the circuits and en-

force the federal labor policy.

I. The §10(b) Issue

Whether § 10(b) applies to fair representation claims

was left cpen by the Court in Mitchell. There, the Court

declined to consider the issue “since it was not raised by

either of the parties here or below” (451 U.S. at 60 n.2).

The §10(b) question warrants the attention of this

Court not only because of the conflicting views of Justice

Stewart and Stevens in their respective concurring and

dissenting opinions in Mitchell, it is warranted as well by

the conflict in the circuits that has developed. Justice

Stewart in Mitchell would have decided the case by apply-

ing the £10(b) limitation to the fair representation

claim. Justice Stewart’s views were based upon his read-

ing of a congressional intent evinced in §10(b) that

claims of very similar or identical character must be

brought within that period and the policy of the statute

in safeguarding the stability of collective bargaining

agreements which he felt “applies with equal force in this

[fair representation] context.” (451 U.S. at 68). Justice

Blackman declined to resolve Mitchell upon application

of § 10(b) but stated that “I find much that is persuasive

in Justice Stewart’s analysis.” (451 U.S. at 65). Jus-

tice Stevens alone voiced another view that §10(b) was

not to be applied because he believed it was intended to

be applicable only to administrative procedures under the

National Labor Relations Act. (451 U.S. at 76). These

conflicting views of the Justices of this Court over an ex-

pressly open issue warrant a final resolution,

Furthermore, the decisions of the Second Cireuit in

Flowers and the Fifth Cireuit below conflict with that of

the Sixth Circuit in Badon v, General Motors, Corp., 679

F.2d 93 (6th Cir, 1982) in which the Sixth Circuit ap-

plied the 6-month § 10(b) limitation to a breach of fair

representation claim.”

This issue which remains unsettled in this Court and

which divides the circuits is critical to the course of liti-

gation of the extremely large number of fair representa-

tion actions pending in the district and circuit courts. A

grant of a writ of certiorari to resolve this issue will

greatly facilitate the processing of those cases.

Il, The Single Limitations Period Issue

If the Court rejects application of §10(b) to the fair

representation claims, then the Court would confront the

second issue: Whether a single state limitations period

5In Badon the Sixth Circuit adopted §10(b) after finding that

no state limitations period was applicable, We believe that the

correct result was reached even though the court reversed the

order for review of available periods of limitation mandated in

Johnaon v, Railway Ewpreas Ageney, 421 U.S, 454 (1975) in which

this Court stated the entire analysis for selection of a limitation

period:

Since there is no specifically stated or otherwise relevant

federal atatute of limitationa . . . the controlling period would

ordinarily be the most appropriate ore provided by federal law,

(421 U.S, at 462; emphasis added),

applicable to suits to vacate arbitration awards should

be applied to both the claims against the employer for

breach of the collective bargaining agreement and the

union for breach of its duty of fair representation, The

resolution of that issue below and by the Second Circuit

in Flowers is squarely inconsistent with the rationale of

this Court in Mitchell and the decisions of other courts

of appeal.

1, Both the court below and the Second Circuit recog-

nized that application of separate periods of limitation is

inconsistent with the analysis and rationale of Mitchell.

Nonetheless, they proceeded to sever the claims and apply

separate periods of limitations upon a conclusion that this

Court’s analysis to the contrary in Mitchell was mere

“dicta,”

In Mitchell this Court reciting from Hines v. Anchor

Motor Freight, Inc. recognized that the elements of the

claims against the employer and the union are the same,

stating:

To prevail against either the company or the Union,

petitioners must not only show that their discharge

was contrary to the contract but must also carry the

ang of demonstrating breach of duty by the

nion,

Mitchell, 541 U.S. at 62, quoting Hines, 424 U.S. at

570-71,

In this same connection is must be noted that through-

out the Mitchell decision the majority referred to plain-

tiff’s combined hybrid claims as a “Hines-type action.”

Indeed, the characterization of such an action us one to

vacate an arbitration award is based upon the existence

of the fair representation component—not the breach of

contract component:

It is true that respondent’s underlying claim against

his employer is based on the collective-bargaining

agreement, a contract. It is not enough, however,

for an employee such as respondent to prove that he

10

was discharged in violation of the collective-

bargaining agreement ... .[ 2] espondent’s character-

ization of his action against the employer as one for

“breach of contract” ignores the significance of the

fact that it was brought in the District Court pur-

suant to § 801(a) of the LMRA and that the indis-

pensable predicate for such an action is not a show-

ing under traditional contract law that the discharge

was a breach of the collective-bargaining agreement,

but instead a demonstration that the union breached

its duty of fai» representation, Since the conclusion

of the Joint Panel was, under the collective-bargaining

agreement, “binding on all parties,” respondent was

required in some way to show that the Union's duty

to represent him fairly at the arbitration had been

breached before he was entitled to reach the merits

of his contract claim, This, in our view, makes the

suit more analogous to an action to vacate an arbitra-

tion award than to a straight contract action, (451

U.S. at 62-63; emphasis added).

Thus, to hold that the claim against the union is not

governed by the same arbitration statute that this Court

in Mitchell applied to the claim against the employer

flies squarely in the very teeth of the Mitchell decision.

2. After the Mitchell decision other courts of appeals

have concluded, contrary to the decision below and the

Flowers uecision in the Second Circuit, that state arbi-

tration time limits apply both to the claims against the

employer and the breach of fair representation claims

against the unions.*

The Third Circuit has so concluded in Fedor v. Hy-

grade Food Products Corp., 687 F.2d 8 (3d Cir. 1982),

The Fourth Circuit did likewise in DelCostello v. Team-

sters, —— F.2d ——— (4th Cir. 1982), cert. granted ——

®*The issue remains expressly open in the First Circuit, Sear v,

Cadillac Auto Co, of Boston, 654 F.2d 4 (lat Cir, 1981) and MeNutt

v, Airco Industrial Gases Division, 687 F.2d 639 (1st Cir, 1982).

ll

U.S. ——; enforcing 524 F.Supp. 721, concluding that

the same state arbitration limitations period was appli-

cable to both claims.

As noted earlier, the Fifth Circuit itself cannot de-

cide whether a single limitation period applies. In Rigby

v. Roadway Express, Inc., 680 F.2d 342 (5th Cir. 1982)

rendered after the decision in this case, another panel of

the Court held a cingle limitation period applicable

to vacating arbitration awards to both claims.

The Sixth Circuit has also concluded that the better

rule is that the same period of limitations governs both

claims. Badon v. General Motors, 679 F.2d 93 (6th Cir.

1982).

The Seventh Circuit apparently intends to apply a

single limitation period. Baker v. Amsted Industries, Inc.,

656 F.2d 1245 at 1251, n. 11 (7th Cir. 1981).

The Ninth Circuit has reached the same conclusion.

See Singer v. Flying Tiger Line, Inc., 652 F.2d 1349 (9th

Cir. 1981).

However, compounding the confusion, the Eleventh

Circuit has joined the Second and Fifth Circuits in apply-

ing the Flowers rationale to reach the conclusion that sep-

arate periods of limitation are to be applied and that the

claims against the unions are not governed by the period

of limitations applicable to vacating arbitration awards.

Hand v. International Chemical Workers, 681 F.2d 1308

(11th Cir. 1982).

It is clear from the foregoing that the decision below

conflicts with that of other circuits as well as the ra-

tionale of Mitchell.

III. The Texas Arbitration Act Issue

In Mitchell this Court, for the purpose of selecting a

period of limitations, characterized hybrid actions such

as this as ones to vacate an arbitration award. In this

ease the Fifth Circuit rejected application of a Texas

limitation applicable to vacating arbitration awards to

12

either the contract claim against the employer or the

claim against the Union. By that rejection the Fifth Cir-

cuit abandoned Mitchell.’

In the absence of an express federal limitation period,

Mitchell restated the long-standing proposition that the

court’s function in such circumstances is to borrow the

federal or state statute which is most “closely analo-

gous.” That selection process “depends upon an exami-

nation of the nature of the federal claim and the federal

policies involved” (451 U.S. at 60-61). The stated policy

to be considered was protection of the collective bargain-

ing process by prompt disposition of labor disputes (451

U.S. at 63). Furthermore, Mitchell recognized that the

limitation selected would often not fit “hand in glove”

with the federal cluim (451 U.S. at 64). In that con-

nection the Court applied the New York arbitration

statute even though affected individuals could not under

that act even bring actions to vacate an arbitration

award (451 U.S. at 61, n. 3).

In the face of these requirements the Fifth Circuit re-

jected application of a ninety-day Texas limitation appli-

cable to vacating arbitraviun awards, Art. 237(B), Tex.

Rev. Civ. Stat. Ann. Without regard for the fact that

this federal claim and the state statute deal with the

same general subject matter and that the limitation of

the state statute conforms to the labor policy of prompt-

ness, the Fifth Circuit rejected the Texas limitation be-

cause it exempted from its substantive coverage “any

collective bargaining agreement between an employer and

a labor union.” Art. 224(a), Tex. Rev. Civ. Stat. Ann.

Instead of this arbitration statute the Court applied a

four-year “catch-all” limitation to claims against the em-

ployer and a two-year tort limitation to the claims against

the Union (Articles 5529 and 5526, Tex. Rev. Civ. Stat.

Ann., respectively}.

7 Although the Fifth Cirevit refused to characterize the action

against the Union as one to vacate an arbitration award this argu-

ment presumes the error of that stance as presented in the previous

section,

13

By selecting these protracted limitations periods Peti-

tioners contend that the Fifth Circuit misapplied Mitch-

ell and abandoned its stated federal labor policy of prompt

disposition of labor disputes. In like connection, the Fifth

Circuit’s borrowing violated the requirement of Occiden-

tal Life Insurance Co. v. EEOC, 482 U.S. 355 at 367

(1977), that “state limitations periods will not be bor-

rowed if their application would be inconsistent with the

policies of the federal statute.”

For these reasons, as well as the need to conform the

circuits on this issue, a writ of certiorari is required. Cf.

Local 1020 of the United Brotherhood of Carpenters, 658

F.2d 1285 (9th Cir. 1981).

CONCLUSION

For the foregoing reasons the petition for writ of

certiorari should be granted on all issues.

Respectfully submitted,

JAMES L. HICKS, JR.

HICKS, GILLESPIE & JAMES, P.C.

704E-1341 W. Mockingbird Lane

Dallas, Texas 75247

(214) 630-8621

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 81-2283

NorMAN E. EDWARDS and BOBBY WAYNE MIZE,

Plaintiffs-A ppellants,

Vv.

SEA-LAND SERVICE, INC., et al.,

Defendants-A ppellees.

June 24, 1982

Appeals from the United States District Court

for the Southern District of Texas

Before THORNBERRY, REAVLEY and RANDALL,

Circuit Judges.

RANDALL, Circuit Judge:

Plaintiffs-Appellants Norman E. Edwards and Bobby

Wayne Mize (hereinafter collectively “Plaintiffs”) appeal

the decision of the district court dismissing their suit for

breach of a collective bargaining agreement by Defend-

ant-Appellee Sea-Land Service, Inc. (“Sea-Land”) and

breach of duty of fair representation by Defendant-

Appellee International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers, Local No. 988 (the

“Union”). The district court held that Plaintiffs’ claims

were barred by the Texas and federal statutes of limita-

tions. We reverse the district court as to the applicable

statutes of limitations and remand for further proceed-

ings consistent with this opinion.

I. Facts and Procedural History

The facts necessary to a determination of the statute

of limitations questions before us may be summarized

very briefly.

2a

On December 27, 1978, after several years of employ-

ment by Sea-Land, beth Mize and Edwards received lay-

off notices pursuant to the terms of the collective bar-

gaining agreement in effect between Sea-Land and the

Union. On January 2, 1979, Mize and Edwards filed con-

tractual grievance reports protesting their layoff. On

January 15, 1979, Sea-Land amended the reasons for its

layoff notice. On April 1, 1980, Mize and Edwards re-

ceived notice that, pursuant to the collective bargaining

agreement, their claims had been submitted to arbitra-

tion and furthermore, that they had been denied. On

April 21, 1981, Mize and Edwards filed suit in the dis-

trict court pursuant to § 301 of the Labor Management

Relations Act' (LMRA), 29 U.S.C. § 185, alleging that

Sea-Land violated the collective bargaining agreement by

laying off and ultimately dismissing them and that the

Union violated its duty of “fair representation” by its

manner of representing them in the contractual arbitra-

tion procedure. They also alleged that they were not re-

1 Section 301 states:

(a) Suits for violation of contracts between an employer and

a labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between any

such labor organizations, may be brought in any district court

of the United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to the

citizenship of the parties.

(b) Any labor organization which represents employees in an

industry affecting commerce as defined in this chapter and any

employer whose activities affect commerce as defined in this

chapter shall be bound by the acts of its agents. Any such

labor organization may sue or be sued as an entity and on

behalf of the employees whom it represents in the courts of the

United States. Any money judgment against a labor organiza-

tion in a district court of the United States shall be enforceable

only against the organization as an entity and against its

assets, and shall not be enforceable against any individual

member or his assets.

29 U.S.C. § 185.

8a

instated because of age discrimination. Jurisdiction was

predicated on 28 U.S.C. § 1337.

The district court dismissed Plaintiffs’ claims against

Sea-Land and the Union upon its conclusion that the

ninety-day period of limitation under the Texas General

Arbitration Act,” Tex.Rev.Civ.Stat.Ann. art. 237(B)

(Vernon 1979), or the three-month period under the Fed-

eral Arbitration Act, 9 U.S.C. § 12,° barred Plaintiffs’

claims.

The district court reasoned that the recent United

States Supreme Court decision of United Parcel Service,

Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d

732 (1981), indicated that this action was in the nature

of an action to vacate an arbitration award and man-

dated that the Texas ninety-day limitation on applica-

tions to vacate arbitration awards was the most appropri-

ate statute of limitations as to both the claim of breach

of the collective bargaining agreement and the claim of

breach of the duty of fair representation. The court held

that an exclusion in the Texas General Arbitration Act

which specifically removed from the coverage of the act

arbitration agreements resulting from “any collective bar-

gaining agreement between an employer and a labor

union,” Tex.Rev.Civ.Stat.Ann. art. 224(a) (Vernon 1979),

2 The statute provides:

Sec. B. An application under this Article shall he made

within ninety days after delivery of a copy of the award to

the applicant, except that, if predicated upon corruption, fraud

or other undue means, it shall be made within ninety days

after such grounds are known or should have been known.

Tex.Rev.Civ.Stat.Ann. art. 237(B) (Vernon 1979).

3 The Federal Arbitration Act states:

Notice of a motion to vacate, modify, or correct an award

must be served upon the adverse party or his attovney within

three months after the award is filed or delivered.

9 U.S.C. § 12.

4a

did not prelude applicability of the ninety-day limitation

as “an action to vacate an arbitration award pursuant to

§ 301 [29 U.S.C. § 185] is not such an action in a collec-

tive bargaining agreement as would bring the statutory

bar into play.” The court relied on language from Mitch-

ell that “the unfair representation claim ... is more a

creature of ‘labor law’ as it has developed since the en-

actment of § 301 than it is of general contract law.”

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 638,

101 S.Ct. at 1564.

The district court further held that the three month

limitation of the Federal Arbitration Act barred the

action.

[T]he case at bar is brought under § 301 of the

Labor Management Labor Relations Act, 29 U.S.C.

§ 185—it follows that the Court should incline to-

wards the application of federal law: “the dimen-

sions of § 301 require the conclusion that substantive

principles of federal labor law must be paramount

in the area covered by the [federal] statute.” Id.

[Matter of Communication Workers of America v.

Pacific Telephone and Telegraph Co., 462 F.Supp.

736] at 738. Although the Federal Arbitration Act

technically exempts contracts of employment from its

coverage, 9 U.S.C. § 1, “it has been held that judicial

decisions making arbitration clauses specifically en-

forceable, have the effect of making labor contracts

governed by the [Federal Arbitration Act].” Gas

Workers Local No. 80 v. Mich. Consolidated Gas, 508

F.Supp. 155, 157 (E.D.Mich.1980) ; Keystone Metal

Molding, Etc. v. R. & W. Metals, 486 F.Supp. 813

(D.Mont.1980). Moreover, in the case at bar Texas

law need not apply since this action, by Plaintiffs’

own admission, involves interstate commerce. Plain-

tiffs’ Original Complaint, Paragraphs 2 and 4. See,

Miller v. Puritan Fashions Corporation, 516 S.W.2d

234, 288 (Tex.Civ.App—Waco 1974, writ ref’d

ba

n.r.e.), Since this case indisputably involves inter-

state commerce, there is no question that this Court

may do what was suggested in the dissent in Hoosier

Cardinal, supra |383 U.S.) at 709, [86 S.Ct. at 1115]

and “fashion a uniform rule after consideration of

the relevant federal and state statutes.” Keystone

Metal, supra at 818, In such a case the three-month

limitation period expressed in 9 U.S.C, § 12 would

clearly be applicable.

In light of the foregoing, it is clear that either the

federal three-month or state 90-day statute of limi-

tations on actions to vacate an arbitration award is

applicable.

Mize and Edwards appeal, claiming that although a

Texas, (rather than federal) statute of limitations is to

be applied, citing /nternational Union, United Automo-

bile Aerospace & Agricultural Implement Workers of

America (UAW), AFL-CIO v, Hoosier Cardinal Corp.,

883 U.S, 696, 86 S.Ct, 1107, 16 L.Ed.2d 192 (1966), the

ninety-day limitation found in the Texas Arbitration Act

is not applicable because of the collective bargaining ex-

clusion; rather the four year limitation as to contracts

is applicable.* In the alternative, Mize and Edwards claim

that if the ninety-day limitation is to be applied, it should

not be applied retroactively to bar their suit brought

prior to the Court’s decision in Mitchell.

Sea-Land and the Union defend, claiming that the

Texas ninety-day limitation applies despite the collective

*The statute in effect at the time the suit was filed provided:

There shall be commenced and prosecuted within four years

after the cause of action shall have accrued, and not afterward,

all actions or suits in court of the following description:

1, Actions for debt where the indebtedness is evidenced by

or founded upon any contract in writing.

Tex.Rev.Civ.Stat.Ann, art, 5527 (Vernon 1956),

6a

bargaining exclusion. In the alternative, according to

Sea-Land and the Union, if the Texas Act does not apply,

either the three month limitation of the Federal Arbitra-

tion Act, or the six month limitation of the National

Labor Relations Act® (NLRA), 29 U.S.C. § 160(b), ap-

plicable to unfair labor practices, applies. Moreover, the

applicable statute of limitations should be applied retro-

actively to bar the Plaintiffs’ action.

The Union also alleges that this appeal should be dis-

missed because it was not timely brought.

Il. Timeliness of Appeal

On May 4, 1981, Sea-Land moved to dismiss Plaintiffs’

complaint, alleging it was barred by the statute of limi-

tations, On June 22, 1981, the district court granted

Sea-Land’s motion stating that “[i]n light of the disposi-

tion made herein, the other points raised by Defendant

need not be addressed.” On July 2, 1981, the Union moved

to dismiss the complaint. On July 22, 1981, the Plaintiffs

filed notice of appeal from the court’s dismissal order of

June 22, 1981 as to Sea-Land, On July 24, 1981, the dis-

trict court granted the Union’s motion to dismiss, On

August 14, 1981, the Plaintiffs filed a notice of appeal

from the court’s dismissal] of the action against the Union.

On August 31, 1981, the district court rendered judgment

on the action, ordering that the action be dismissed on the

merits and that Plaintiffs be assessed costs.

®* That statute provides;

Provided, That no complaint shall issuc based upon any unfair

labor practice occurring more than six months prior to the

filing of the charge with the Board and the service of a copy

thereof upon the person against whom such charge is made,

unless the person aggrieved thereby was prevented from filing

such charge by reason of service in the armed forces, in which

event the six-month period shall be computed from the day of

his discharge.

29 U.S.C, § 160(b).

Ta

The Union moved this court to dismiss the appeals

claiming that Plaintiffs appealed before “final judgment”

within the meaning of 28 U.S.C, § 1291, They allege that

Plaintiffs age discrimination complaints had not been ad-

dressed, and additionally, that any appeal brought before

the August 81, 1981 judgment was premature. On Oc-

tober 14, 1981, this court denied the motion to dismiss,

The Union has urged us again to consider its contention,

We have. It has not improved with age.

The first contention, that the district court had not dis-

missed all claims, is frivolous, The two district court

orders dismissing the complaint clearly show that the

court completely dismissed all of Plaintiffs’ claims against

both Sea-Land and the Union,

The second contention, that an appeal taken after entry

of an order dismissing the complaint but prior to any

entry of judgment on the complaint pursuant to Fed.R.

Civ.P. 58, is untimely, has been implicitly rejected by this

court:

The requirements of Rule 58 may be satisfied by

the district court after an appeal is docketed, Stokes

v, Peyton's Ine,, 5 Cir, 1975, 508 F.2d 1287; Mark-

ham v, Holt, 5 Cir, 1966, 869 F.2d 940; Bates »v,

Batte, 5 Cir, 1951, 187 F.2d 142, cert. denied, 342

U.S, 815, 72 S.Ct, 29, 96 L.Ed, 616,

Kirtland v, J, Ray McDermott & Co., 568 F.2d 1166, 1169

(5th Cir, 1978). Thus, the sequence of events wherein the

district court dismissed the complaints, the Plaintiffs ap-

pealed and the district court then entered judgment did

not render these appeals jurisdictionally defective. Jd.

III, Statute of Limitations

We are faced in this appeal with several questions. We

must decide what statute or statutes of limitation apply in

this action brought against both Sea-Land and the Union.

If one statute applies to both causes of action against both

8a

defendants our inquiry is less complicated, but if different

statutes apply to Sea-Land and to the Union we must

determine which of several are appropriate, Our inquiry

must initially focus on the nature of the actions brought

here,

Plaintiffs action against Sea-Land for breach of the col-

lective bargaining agreement is brought pursuant to

$801" of the LMRA, 29 U.S.C, § 185. United Parcel

Service, Ine, v, Mitchell, 451 U.S, at 61, 101 S.Ct, at 1563;

Liotta v, National Forge Co., 629 F.2d 9038, 905-906 (3rd

Cir, 1980), cert, denied, 451 U.S, 970, 101 S.Ctfl 2045, 68

L.Ed.2d 848 (1981). This action, though phrased in

breach of contract terms, must be characterized as “an

action to vacate an arbitration award.” United Parcel

Service, Inc, v, Mitchell, 451 U.S, at 64, 101 S.Ct. at 1564;

Liotta v, National Forge Co., 629 F.2d at 905,

The Supreme Court, in its characterization of the ac-

tion before it as one to vacate an arbitration award,

stated;

To prevail against either the company or the Union,

petitioners must not only show that their discharge

was contrary to the contract but must also carry the

burden of demonstrating breach of duty by the Union

..» The grievance processes cannot be expected

to be error-free. Hines 424 U.S., at 570-571, 96 S.Ct.,

at 1059-60. Thus respondent’s characterization of his

action against the employer as one for “breach of

contract” ignores the significance of the fact that it

was brought in the District Court pursuant to

§ 301(a) of the LMRA and that the indispensable

predicate for such an action is not a showing under

traditional contract law that the discharge was a

breach of the collective—bargaining agreement, but

instead a demonstration that the union breached its

duty of fair representation .... This, in our view,

makes the suit more analogous to an action to vacate

® See note 1, supra,

and arbitration award than to a straight contract

action.

United Parcel Service, Inc, v. Mitchell, 451 U.S. at 62,

101 S.Ct. at 1568-64,

In Mitchell as well as Liotta, the employee had sued

only the employer. Furthermore, in Liotta, the court spe-

cifically stated that the employee’s “alleg(ation] that the

arbitration award was invalid due to the Union’s breach

of duty of fair representation does not change the limi-

tations period because the suit here is against the Com-

pany and not the Union.” Liotta v, National Forge Co.,

629 F.2d at 905 (emphasis added),

But what of Plaintiff's suit against the Union for un-

fair representation? A review of the complaint indicates

it is somewhat similar to that deseribed in Liotta, 629

F.2d at 905-06. However, here, Plaintiffs request damages

against both Sea-Land and the Union, have sued the

Union directly and have appealed as to both Sea-Land

and the Union. This presents a different posture than

that presented in Mitchell, where only the employer ap-

pealed the decision to the Supreme Court, or Liotta,

where the plaintiff employee appealed only from the de-

cision as to the employer. This posture requires very

careful serutiny.

There is no doubt that an action against a Union for

breach of duty of fair representation need not be combined

with a § 301 action against an employer.

The duty of fair representation is an independent

statutory duty that arises from the union’s position as

exclusive bargaining agent under section 8 and 9 of

the labor laws, Ford Motor Co. v. Huffman, 345 U.S.

330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048 (1953).

A union has a duty to represent fairly all the em-

ployees in a bargaining unit because of the rights

granted the union under sections 8(b) and 9(a) of

the federal labor laws, 29 U.S.C. §§ 158(b), 159(a)

10a

(1976). Vaca v, Sipes, 886 U.S. [171] at 177, 87

S.Ct. [903] at 909; [17 L.Ed.2d 842] Smith v, Local

25, Sheet Metal Workers Int'l. Ass’n, 500 F.2d [741]

at 746, These sections are a part of an “Act of Con-

gress regulating commerce” over which the district

courts have original jurisdiction under 28 U.S.C.

$1837 (1976). See Amalgamated Asa’n of Street,

Electric Railway & Motor Coach Employees v, Lock-

ridge, 403 U.S, at 274, 91 S.Ct. at 1909 (29 L.Ed.2d

473|; Smith v. Local 25, Sheet Metal Workers Int'l

Ass'n 500 F.2d at 748-49,

In Re Carter, 618 F.2d 1098, 1104 (5th Cir, 1980),

cert, denied, 450 U.S, 949, 101 S.Ct, 1410, 67 L.Ed.2d 878

(1981).

This independent jurisdictional basis was explicitly dis-

cussed by Justices Stewart and Stevens in Mitchell, even

though the union was not a party to the appeal in that

case, United Parcel Service, Inc, v, Mitchell, 451 U.S. at

67 n.2, 101 S.Ct. at 1566 n.2, (Stewart J., concurring in

the judgment) (“The Court has recognized on numerous

occasions that ‘[t]he duty of fair representation is...

implicit in the National Labor Relations Act.’ See, ¢.g.,

Electric Workers v, Foust, 442 U.S, 42, 46, n.8, 99 S.Ct.

2121, 2125, n.8, 60 L.Ed.2d 698,"),

Justice Stewart further characterized these combination

actions as “an amalgam of § 3801... and the NLRA,”

id, at 1566, stating:

The respondent here has two claims each with its

own discrete jurisdictional basis. The contract claim

against the employer is based on § 301, but the duty

of fair representation is derived from the NLRA

[29 U.S.C, §8 158(b), 159(a)]. Yet the two claims

are inextricably interdependent. “To prevail against

either the company or the union, . . . [employee-

plaintiffs] must not only show that their discharge

was contrary to the contract but must also carry the

lla

burden of demonstrating breach of duty by the

union.” Hines v. Anchor Motor Freight, 424 U.S.

554, 570-571, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231,

Accordingly, a plaintiff musi prevail upon his un-

fair representation claim before he may even litigate

the merits of his § 301 claim against the employer.

Id. Because he believed that the actions were an amal-

gam, Justice Stewart would have applied the six month

statute of limitations of § 10(b) of the NLRA.' 29 U.S.C.

§ 160(b), to both actions.

Although § 10(b) o: the NLRA was designed to limit

the initiation of unfair labor practice claims in order

to safeguard the stability of collective-bargaining

agreements, the policy behind it applies with equal

force in this context,

Congress enacted §10(b) of the NLRA to pro-

tect continuing collective-bargaining systems from de-

layed attack. The six-month bar of § 10(b) is de-

signed to strengthen and defend the “stability of bar-

gaining relationships.’ Machinists Local v, Labor

Board, 362 U.S, 411, 425, 80 S.Ct, 822, 831, 4 L.Ed.

2d 832. The time limitation reflects the balance

drawn by Congress, “the expositor of the national

interest,” id., at 429, 80 S.Ct., at 883, between the in-

terest of employees in redressing grievances and “vin-

dicat{ing] [their] statutory rights,” ibid., and the

“interest in ‘industrial peace which it is the overall

purpose of the Act to secure,’” Jd, at 428, 80 S.Ct.,

at 832 (quoting Labor Board v, Childs Co., 195 F.2d

617, 621-622 (CA2) (L. Hand, concurring).

Id, at 1566-67,

While Justice Stewart recognized this ‘one aspect of the

respondent’s claim in this case is predicated on § 301 of

the LMRA,” id., rather than on a claim of an unfair labor

7 See note 5, supra,

12a

practice, he was willing to apply § 10(b) to both the § 301

and unfair representation claims, reasoning

[iJn § 10(b) [of] the NLRA, Congress established

a limitations period attuned to what it viewed as the

proper balance between the national interests in stable

bargaining relationships and finality of private set-

tlements, and an employee’s interest in setting aside

what he views as an unjust settlement under the

collective-bargaining system. That is precisely the

balance at issue in this case. The employee’s in-

terest in setting aside the “final and binding” de-

termination of a grievance through the method es-

tablished by the collective bargaining agreement un-

questionably implicates “those consensual processes

that federal labor law is chiefly designed to promote

—the formulation of the agreement and the private

settlement of disputes under it.” Hoosier, 383 U.S.,

at 702, 86 S.Ct., at 1111. Accordingly, “(t]he need

for uniformity” among procedures followed for simi-

lar claims, ibid, as well as the clear congressional in-

dication of the proper balance between the interests at

stake, counsel the adoption of § 10(b) of the NLRA

as the appropriate limitations period for lawsuits

such as this.

Id, at 1568.

The majority of the Court, however, refused to ad-

dress the question of the applicability of § 10(b):

Amicus The American Federation of Labor and

Congress of Industrial Organizations has filed a brief

arguing that in cases such as the present courts

should apply the 6-month limitations period found

in §10(b) of the National Labor Relations Act,

29 U.S.C. §160(b) (1976). The AFL-CIO distin-

guishes the above-quoted language from Hoosier

Cardinal on the ground that Hoosier Cardinal in-

volved a § 301 action by a union against an employer,

l3a

while actions brought by employees against both their

union and employer pursuant to our decisions in Vaca

v. Sipes, 386 U.S. 171 [87 S.Ct. 903, 17 L.Ed.2d

842] (1967) and Hines v. Anchor Motor Freight,

Inc., supra, are hybrid § 801—breach of duty ac-

tions, the union’s duty being implied from the NLRA.

We decline to consider this argument since it was not

raised by either of the parties here or below.

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 60

n.2, 101 S.Ct. at 1562 n.2.

Justice Stevens, while also finding discrete jurisdic-

tional bases, did not combine the claim of breach of duty

of fair representation with the § 301 claim.

The employee’s claim against his union for breach

of the duty of fair representation, however, is of a

far different character. Altogether this claim is

closely related to the claim against the employer, the

two claims are nonetheless conceptually distinct. The

claim against the union may not, in my judgment, be

characterized as an action to vacate an arbitration

award. The arbitration proceeding did not, and in-

deed, could not, resolve the employee’s claim against

the uxion. Although the union was a party to the

arbitration, it acted only as the employee's repre-

sentative; the joint Panel did not address or resolve

any dispute between the employee and the union.

Therefore, with respect to the employee’s action

against the union, the finality and certainty of ar-

bitration are not threatened by the prospect that the

employee might prevail on his judicial claim. Be-

cause no arbitrator has decided the primary issue

presented by this claim, no arbitration award need

be undone even if the employee ultimately prevails.

The employee’s claim against his union is prop-

erly characterized, not as an action to vacate an arbi-

tration award, but rather as a malpractice claim.

l4a

There is no conceptual reason why that claim may not

survive even if the employer is able to rely on the

arbitration award as a conclusive determination of its

obligations under the collective bargaining agreement.

Id. at 1569-70 (Stevens, J., concurring in part and dis-

senting in part).

Thus the majority did not address the question of the

statute of limitations as to a union; Justices Stewart and

Stevens reached different conclusions as to the appropriate

characterization and statute of limitations applicable to

an action against both an employer and union.

After Mitchell, three Courts of Appeals reached incon-

sistent decisions whether, in a suit against a union and an

employer, the statute of limitations applicable to the

vacation of arbitration awards is applicable to the cause

of action against the union. Third and Ninth Circuits as-

sumed, without analysis, that Mitchell was a suit brought

against both the union and the employer and that the

statute applicable to the vacation of arbitration awards

applied to both the employer and the union. Service Em-

ployees International Union, Local No. 36, AFL-CIO v.

Office Center Services, Inc., 670 F.2d 404, 408 n.7 (8rd

Cir. 1982); Singer v. The Flying Tiger Line Ine., 652

F.2d 1249, 1858 (9th Cir. 1981). The Second Circuit,

recogn.zing that the suit in Mitchell was against the

employer only, reasoned that:

The question then becomes whether we are bound

to follow the somewhat equivocal dicta _xpressed by

a majority of the Court [in Mitchell] with reference

to a matter which was not specifically before it, or

whether we can follow what we think is the more

persuasive reasoning expressed in a solitary dis-

senting opinion. We have struggled with this difficult

question. Though we are pressed by the dicta of the

majority, we are persuaded by Justice Stevens’ an-

alysis. Accordingly, we hold that the arbitration

l5a

award statute of limitations does not apply [to the

union].

Flowers v. Local 2602 of United Steel Workers, 671 F.2d

87, 90 (2d Cir. 1982).

District courts in our circuit have rendered inconsis-

tent opinions. McFarland v. International Brotherhood

of Teamsters Local 745, 535 F.Supp. 970 (N.D.Tex.

1982); Weed v. East Texas Motor Freight Lines, Inc.,

No. CA-3-79-0881-G (N.D.Tex., January 22, 1982).

In McFarland, the district court applied the reasoning

of Justice Steveis that, because the suit against the union

had an independent jurisdictional basis, it was not gov-

erned by Mitchell. In Weed, the district court applied the

Mitchell reasoning to a suit against the Union stating:

[t]his court is compelled to read the majority’s de-

cision broadly to characterize a claim against a union

for breach of duty of fair representation when com-

bined with a claim against an employer for breach of

contract as “analogous to an action to vacate an ar-

bitration award.” 49 U.S.L.W. at 4379. [101 S.Ct.

at 1564]

Weed v. East Texas Motor Freight Lines, Inc., slip op.

at 4 (emphasis added).

The first question before us then is the one articulated

in Weed: when there is a combination action for breach

of duty of fair representation and an action to vacate an

arbitration award, are both actions covered by the stat-

ute of limitations governing an action to vacate an arbi-

tration award?

The answer must be in the negative. The statute of limi-

tations applicable to the suit against the Union is inde-

pendent of any limitation applicable to the 301 action

against Sea-Land. While the Supreme Court has stated

that the breach of duty of fair representation as “a crea-

ture of labor law’, it is a creature of a different area of

léa

labor law than an action brought under § 301. United

Parcel Service, Inc. v. Mitchell, 451 U.S. at 66 n.2, 101

S.Ct. at 1566 n.2 (Stewart, J., concurring in the judg-

ment). As this court has stated, this claim has an inde-

pendent jurisdictional basis. Jn Re Carter, 618 F.2d 1093

at 1104 (5th Cir.). Although the Plaintiffs here did not

explicitly separate their causes of action against Sea-

Land to the Union, we cannot say that because they com-

bined their causes of action they are bound in their suit

against the Union by any statute of limitations applicable

to an action to vacate an arbitration award. Clearly, if

the Plaintiffs had brought the action only against the

Union, a characterization of this action as one under

§ 801 to vacate an arbitration award would have been in-

appropriate. Jd. Such a characterization of the action

against the Union when that action is combined with one

against Sea-Land is also inappropriate.

Justice Stevens’ reasoning as to such an action against

a union seems particularly apposite:

While an arbitration decision favorable to the em-

ployer—for example, that the discharge did not

breach the collective bargaining agreement—would

be of substantial significance in an employee’s suit

against his union, it would not necessarily be dis-

positive. The determination whether the employer

breached the agreement may be highly relevant to the

amount of damages caused by the union’s alleged

breach of duty, but it is not necessarily controlling

with respect to the threshold question whether there

was a breach of duty by the union at all. For ex-

ample, if, solely for reasons of racial bias, a union

processes a discharged employee’s grievance in bad

faith, the union breaches its duty of fair representa-

tion. Cf. Steele v. Louisville & Nashville Rail: vad

Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. The

fact that the underlying discharge may not have vio-

lated the collective-bargaining agreement does not

17a

necessarily absolve the union of liability for its

breach, although it may limit the size of the employ-

ee’s recovery against the union. Thus, while a court

considering an employee’s claim against a union will

evaluate the validity of the employer’s underlying

conduct, that evaluation is not central to the resolu-

tion of the duty of fair representation claim.

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 7%

n.4 101 S.Ct. at 1569 n.4 (Stevens, J., concurring in part,

dissenting in part).

Justice Stevens concluded:

Thus, by analogy, a lawyer who negligently allows

the statute of limitations to run on his client’s valid

claim may be liable to his client even though the

original defendant no longer has any exposure. Cf.

Smart v. Ellis Trucking Co., 580 F.2d 215, 218-19

(CA 6 1978), cert. denied, 440 U.S. 958, 99 S.Ct.

1497, 59 L.Ed.2d 770.

Id, at 1570.

Only if we adopt Justice Stewart’s reasoning that the

claims may be combined into “an amalgam of § 301” is

one statute of limitations appropriate, the six month limi-

tation found in § 10(b) of the NLRA. Because, however,

§10(b) is applicable only to unfair labor practices and

does not cover a § 301 action as described in Mitchell and

because there is no explicit authority to adopt the six-

month federal statute of limitations for both causes of

action, we decline to adopt Justice Stewart’s position. In-

stead we join the Second Circuit in its view that an ac-

tion against a union for breach of duty of fair represen-

tation is not constrained by the limitation appropriate to

a § 301 action against an employer. Instead, we must

consider each cause of action separately to determine the

appropriate statute of limitations.

18a

A. Section 301 Statute of Limitations

1. General Principles

“Congress has not enacted a statute of limitations gov-

erning actions brought pursuant to § 301 of the LMRA.”

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 60,

101 S.Ct. at 1562. Its failure to do so requires a court

hearing a § 301 suit to determine the appropriate statute

of limitations. In /nternational Union, United Automo-

bile, Aerospace & Agricultural Implement Workers of

America (UAW), AFL-CIO v. Hoosier Cardinal Corp.,

supra, the Court held that, in an action under § 301 for

damages brought by a union against an employer for

breach of a collective bargaining agreement, the state

statute of limitations governed.

Accordingly, since no federal provision governs,

we hold that the timeliness of a § 301 suit, such as

the present one, is to be determined, as a matter of

federal law, by reference to the appropriate state

statute of limitations.

Id, 383 U.S. at 705, 86 S.Ct. at 1113.

The Court in Mitchell, relying on Hoosier Cardinal,

supra, stated that “the timeliness of a § 301 suit... is

to be determined, as a matter of federal law, by refer-

ence to the appropriate state statute of limitations.”

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 60,

101 S.Ct. 1562.

The Court, however, in a footnote, did not explicitly re-

ject application of a federal statute of limitations, noting

that

Amicus the American Federation of Labor and

Congress of Industrial Organizations has filed a

brief arguing that in cases such as the present courts

should apply the 6-month limitations period found in

§$10(b) of the National Labor Relations Act, 29

U.S.C. § 160(b) (1976). The AFL-CIO distinguishes

19a

to above-quoted language from Hoosier Cardinal on

the ground that Hoosier Cardinal involved a § 301

action by a union against an employer, while actions

brought by employees against both their union and

employer pursuant to our decisions in Vaca v, Sipes,

386 U.S. 171 [87 S.Ct. 908, 17 L.Ed.2d 842] (1967)

and Hines v. Anchor Motor Freight, Inc., supra, are

hybrid § 801—breach of duty actions, the union’s

duty being implied from the NLRA. We decline to

consider this argument since it was not raised by

either of the parties here or below.

Td, at 1562 note 2. The Court further noted that the

question before it was not whether the state statute of

limitations should apply but, assuming a state statute

applied, which of several state statutes was appropriate.

Id, While these notations indicate that application of a

federal statute of limitations is not foreclosed by Mitchell,

the earlier language of the Court, in Hoosier Cardinal,

in its discussion of the rationale for application of the

state statute of limitations, indicates strongly that, in the

absence of a specific limitation in the federal statute

which creates the cause of action, we should initially look

to the most appropriate state statute.

As early as 1830, this Court held that state stat-

utes of limitations govern the timeliness of federal

causes of action unless Congress has specifically pro-

vided otherwise. McCluny v. Silliman, 3 Pet. 270,

277 |7 L.Ed. 676]. In 1895, the question was re-

examined in another context, but the conclusion re-

mained firm. Campbell v. Haverhill, 155 U.S. 610

[15 S.Ct. 217, 39 L.Ed. 280]. Since that time, state

statutes have repeatedly supplied the periods of

limitations for federal causes of action when federal

legislation has been silent on the question. £.g.,

McClaine v. Rankin, 197 U.S, 154 [25 S.Ct. 410, 49

L.Ed. 702]; Cope v. Anderson, 381 U.S. 461 [67

S.Ct. 1840, 91 L.Ed. 1602] (National Bank Act) ;

20a

Chattanooga Foundry v. Atlania, 208 U.S. 390 [27

S.Ct. 65, 51 L.Ed, 241] (Sherman Act); O'Sullivan

v, Felix, 288 U.S, 818 [84 S.Ct. 596, 58 L.Ed. 980]

(Civil Rights Act of 1870); Englander Motors, Inc.

v. Ford Motor Co,, 298 F.2d 802 (C.A, 6th Cir.)

(Clayton Act); but see Holmberg v. Armbrecht, 327

U.S, 892 [66 S.Ct, 582, 90 L.Ed 748) (Federal Farm

Loan Act). Yet when Congress has disagreed with

such an interpretation of its silence, it has spoken to

overturn it by enacting a uniform period of limita-

tions. F.g., 69 Stat. 283, 15 U.S.C. § 15b (1964 ed.)

(Clayton Act); 85 U.S.C, § 286 (Patent Act). See

also Herget v. Central Bank Co., 3824 U.S. 4 [65

S.Ct. 505, 89 L.Ed. 656]. Against this background,

we cannot take the omission in the present statute as

a license to judicially devise a uniform time limita-

tion for § 301 suits.

Accordingly, since no federal provision governs, we

hold that the timeliness of a § 301 suit, such as the

present one, is to be determined, as a matter of fed-

eral law, by reference to the appropriate state statute

of limitations.

Hoosier Cardinal, 388 U.S, at 708-05, 86 S.Ct. at 1111-

1118. Moreover, considering the supreme Court’s re-

cent application, in Mitchell, of the New York state

statute of limitations applicable to vacation of arbitration

awards, it seems particularly appropriate for us to con-

sider whether Texas has a statute of limitations relating

to arbitration awards and, if so, whether that limitation

is appropriate here.

2. Appropriateness of the Texas General Arbitration

Act

“The characterization of [an] action for the purpose of

selecting the appropriate state statute of limitations is

ultimately a question of federal law.” Hoosier Cardinal,

2la

383 U.S. at 706, 86 S.Ct. at 1113. In Hoosier Cardinal,

the Court’s characterization of the action before it was

one for breach of contract. /d. In determining which

state statute of limitations was applicable, the Court

accepted the state’s characterization of the breach of con-

tract action as one not based “exclusively .. . upon a writ-

ten contract” id., stating “there is no reason to reject the

characterization that state law would impose unless that

characterization is unreasonable or otherwise inconsistent

with national labor policy.” Jd.

As noted above, a ninety-day limitation is set forth in

the Texas General Arbitration Act." Texas, has, in fact,

adopted, in large part, the Uniform Arbitration Act which

was also the basis »r the New York act adopted by the Su-

preme Court in Mitchell, There is, however, one notable

change which was engrafted into the Texas General Ar-

bitration Act in 1965 and carried forth when the act was

amended by the Texas legislature in 1979:

Provided, however, that none of the provisions of

this Act shall apply to:

(a) any collective bargaining agreement between

an employer and a labor union;

Tex.Rev.Civ.Stat.Ann, art, § 224, 224(a) (Vernon 1979).

From the analysis in Hoosier Cardinal and the con-

tent of the Texas General Arbitration Act, we find we

are faced with three questions. First, may the ninety day

limitation of the Texas General Arbitration Act be applied

in spite of the exclusion? Second, if it cannot be applied

would the application of another state statute of limita-

tions be “unreasonable or inconsistent with national labor

policy”? Finally, a third question must be considered in

our tortuous search for the appropriate statute of limita-

tions: if a Texas statute seems “unreasonable” or “in-

consistent,” is there a federal statute of limitations which

* See note 2, supra.

22a

would be more appropriate in this action to vacate an

arbitration award?

As to the first question, Sea-Land and the Union argue

that we may apply the Texas limitation despite the ex-

clusionary language. The district court agreed. Their

position is based upon the arguiment that, despite its

exclusion, the Texas Arbitration Act fulfills the federal

labor policy of “relatively rapid disposition of labor dis-

putes.” United Parcel Service, Inc. v. Mitchell, 451 U.S.

at 63, 101 S.Ct. at 1564, quoting Hoosier Cardinal, 383

U.S. at 707, 86 S.Ct. at 1114. Defendants argue that the

Texas exclusion simply keeps the Texas General Arbitra-

tion Act from fitting “hand in glove” with the action

brought by Plaintiffs. They argue that, because the

Mitchell Court recognized that state statutes of limita-

tion would not fit “hand in glove,” but was nevertheless

willing to apply such statutes, id. at 1565, we should

adopt the Texas ninety-day limitation here. We agree

that the Texas General Arbitration Act does not, in this

case, fit “hand in glove.” We further find that this ill-

fitting statute may not serve as an appropriate statute of

limitations,

Texas has specifically chosen to exclude “collective bar-

gaining agreements” from its arbitration act. While it

cannot be denied that “uniformity and rapidity of de-

cision” are goals of national labor policy, we are con-

strained to recognize, as did the Supreme Court in

Hoosier Cardinal, that:

[A]lthough a uniform limitations provision for § 301

suits might well constitute a desirable statutory ad-

dition, there is no justification for the drastic sort of

judicial legislation that is urged upon us... .

Hoosier Cardinal 383 U.S. at 7038, 86 S.Ct. at 1111. We

simply will not apply the Texas General Arbitration Act

to collective bargaining agreements by judicial fiat when

the Texas legislature has refused to do so over the course

23a.

of the seventeen years that the exclusion has been present

in the Texas act.

Moreover, the argument that we cannot expect the

Texas General Arbitration Act to fit “hand in glove” with

this § 301 action is not persuasive. The Texas exclusion

was not one passed “prior to the enactment of § 301 by

Congress in 1947,” United Parcel Service, Inc. v. Mitchell,

451 U.S. at 64, 101 S.Ct. at 1564, but was passed in 1965

and continued in 1979 when the statute was amended.

The Texas legislature has had the oportunity to amend

its arbitration act to include those agreements arising

from collective bargaining. It has declined to do so. Thus,

the Supreme Court’s rationale for using state statutes of

limitation which do not fit “hand in glove” is inapposite

here.

Furthermore, the limitations for at least some types of

§ 301 actions are not as “uniform” today as Sea-Land

and the Union would assert. Hoosier Cardinal explicitly

allows at least some § 301 actions for damages to be

governed by fifty different state statutes and brought as

late as six years after the alleged violation. Further,

the Court in Mitchell recognized that a six year state stat-

ute might, in some circumstances, be applicable to a § 301

action to vacate an arbitration award.® While its com-

ment in Mitchell was dicta, that dicta and the decision in

Hoosier Cardinal do not necessarily import a movement

toward uniformity in our controlling precedent. Rather,

these decisions in Hoosier Cardinal and Mitchell indicate

the Court has considered determinative factors other than

® The Court stated:

Obviously, if New York had adopted a specific 6-year statute

of limitations for employee challerzes to awards of a Joint

Panel or similar body, we would be bound to apply that statute

under the reasoning of Hoosier Cardinal.

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 64, 101 S.Ct.

at 1564.

24a

rapidity and uniformity. In the case before us, applica-

tion of the Texas General Arbitration Act and its ninety-

day limitation would require that we judicially create a

limitation period explicitly rejected by the Texas legisla-

ture. This we cannot do. The (at best uncertain) quest

for uniformity cannot cause this court to usurp the legis-

lative role.

Turning to the district court’s premise for its decision,

we find a different rationale than that argued to us by

Sea-Land and the Union. The district court reasoned that

this action to vacate an arbitration award was not the

type of action contemplated by the Texas exclusion.’ The

district court cited the Mitchell Court’s statement that a

§ 301 action was more a creature of “labor law” than it is

of “general contract law,” United Parcel Service Inc. v.

Mitchell, 451 U.S. at 63, 101 S.Ct. at 1564, to justify its

holding. While it is unclear exactly what the district

court intended by that remark, if it was reasoning that

the Texas exclusion was aimed only to questions of “con-

tract law” rather than questions of “labor law,” that

rationale finds no support in the clear language of the

10 The rationale expressed in one other decision in which this

Texas exclusion has not been applied warrants note. McFarland v.

International Brotherhood of Teamsters, Local 745, supra. In

McFarland, the district court stated that the choice of limitations

is a matter of federal law and “the choice of the appropriate state

statute ‘depgnds upon an examination of the nature of the federal

claim and the federal parties involved.’ Therefore, the state’s own

characterization of what its statute applies to is of no force in the

Court’s determination.” Jd. at 973. If the district court was rea-

soning that the Texas exclusion of arbitration actions under collec-

tive bargaining agreements might, under some circumstances, render

use of another state statute inappropriate, as a limitation, we

agree. See text. Slip op. pp. 3069-3070, pp. ———- - ——, infra. If,

however, the court was stating that we can overrule the Texas legis-

lature and apply the ninety-day limitation in its General Arbitra-

tion Act when Texas has explicitly chosen not to, we express serious

reservations based on our concerns about the proper role of the

judiciary vis-a-vis the legislature.

25a

Texas General Arbitration Act" itself. The Texas statu-

tory exclusion explicitly svates that arbitration agree-

ments (and, implicitly, the vacation of such agreements)

resulting from one of the most basic tenets of “labor law”

—the collective bargaining agreement—are not to be a

part of the Texas General Arbitration Act. The exclu-

sion in the Texas act is not limited to contract law, but

clearly applies to those types of actions which the Su-

preme Court in Mitchell distinguished as being products

of “labor law” rather than “contract law.” Arbitration

agreements are simply not included in the Texas General

Arbitration Act.

Finally, the Union, at oral argument, asserted that this

action was not within the meaning of the Texas exclusion

of “any collective bargaining agreement between an em-

ployer and a labor union.” According to the Union, the

predicate to recovery by Plaintiffs against Sea-Land is a

finding of breach of duty of fair representation by the

Union. This duty, according to the Union, arises from the

™ The Ninth Circuit has recently applied the Oregon 20 day

statute of limitations to vacate an arbitration award, despite exclu-

sionary language that expressly excludes “conditions of employment

under collective bargaining contracts.” Local 1020 of the United

Brotherhood of Carpenters and Joiners of America v. FMC, Cor-

poration, 658 F.2d 1285 (9th Cir. 1981).

The court, in applying the short statute, reasoned that because

the collective bargaining contracts at issue had provided °o “spe-

cific period within which proceedings to vacate arbitration awards

would have to be instituted,” id. at 1289, the court was free to use

the 20 day limit. We do not quarrel with that court’s reasoning,

but rather look to the nature of the Texas limitation. The Texas

act arguably applies to more than just conditions of employment

under contracts. Its language is broad; nothing in its language

indicates it applies only to situations where there is no time limita-

tion in an employment contract. We decline to engraft into the

Texas exclusion an exception for which we can find no legislative

or judicial authority. Any enactment of that exception more

properly belongs to the Texas legislature, not this court.

26a

exclusivity of the Union’s right to bargain,'? not from the

“collective bargaining agreement” as contemplated in the

Texas exclusion. Because the predicate issue, breach of

duty of fair representation, would not be covered by the

provisions of the Texas General Arbitration Act, this § 301

action to vacate an arbitration award should not, accord-

ing to the Union, be covered. This argument is un-

persuasive. The Mitchell Court characterized the action

in the nature of an action to vacate of arbitration award

despite the need for a predicate finding of breach of duty

of fair representation. The Court then applied the sta-

tute of limitations of the New York arbitration act. It

would seem to be a contradiction for this court to now

hold, consistent with Mitchell that this action is usually to

be characterized as one in the nature of vacation of an

arbitration award (rather than breach of contract) and

that as a result, a state arbitration act should apply, but

that, because the Texas legislature has chosen to exclude

arbitration agreements arising from a collective bar-

gaining agreement from the coverage of its act, this par-

ticular action against the employer will not be character-

ized as one to vacate an arbitration award. The nature of

this action cannot be distorted because Texas has de-

termined to exclude it from coverage of its arbitration

act.

The Seventh Circuit has reasoned that “federal law allows

a collective bargaining agreement to vest the union with exclusive

rights of all employees in the bargaining unit. See 29 U.S.C.

§ 159(a) (1970); Humphrey v. Moore, 375 U.S. 335 [84 S.Ct. 363,

11 L.Ed.2d 870] (1965).” Baker v. Amsted, 656 F.2d 1245, 1249

(7th Cir. 1981). Thus, it could be argued that because the action

for vacation of an arbitration agreement flows from an action for

breach of duty of fair representation which flows from the exclu-

sivity of bargaining and is based upon the collective bargaining

agreement, the Texas exclusion must apply. We need not decide

this highly speculative question as we hold that the action against

the employer, although predicated on a claim of breach of duty of

fair representation, is ultimately one in the nature of vacation of

an arbitration award as contemplated by the exclusion in the Texas

act.

27a

In summary, we reject the arguments offered by lower

courts and the parties as a means for this court to abro-

gate the clear intention of the Texas legislature. The

Texas General Arbitration Act, excluding as it does

“collective bargaining,” cannot be considered to set forth

the appropriate statute of limitations.

After determining that the Texas General Arbitration

Act is inapplicable, we must ask what is the applicable

state statute of limitations and whether that statute im-

poses an unreasonable characterization upon this § 301

action.

Prior to the Supreme Court’s characterization of this

$ 301 action as an action to vacate an arbitration agree-

ment, the four-year Texas statute of limitations for breach

of contract, Tex.Rev.Civ.Stat.Ann art. 5527 (Vernon

1956), had been applied by at least one court. Hensely v.

United Transports, Inc., 364 F.Supp. 1108 (N.D.Tex. 1972).

Because the breach of contracts characterization is no

longer appropriate, see Mitchell, supra, and because Texas

has not assigned a specific limitation to arbitration actions

arising from collective bargaining agreements, we must

inquire what limitation Texas would impose for the vaca-

tion of such arbitration awards. We find the limitation to

be four years as set forth in the Texas “catch all” statute

of limitations."" Tex.Rev.Civ.Stat.Ann. art 5529 (Vernon

1956).

Is that limitation unreasonable or otherwise inconsistent

with national labor policy? Ceratainly, as noted above, a

four year statute of limitatons does not seem totally con-

sistent with the policy of rapid and uniform disposition of

labor disputes as implied in the Mitchell Court’s adoption

18 The statute provides:

Every action other than for the recovery of real estate, for

which no limitation is otherwise prescribed, shall be brought

within four years next after the right to bring the same shall

have accrued and not afterward.

Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1956).

28a

of a ninety-day limitation. However, the Court in Mitchell,

though it adopted the ninety-day limitation, did not cast

its adoption in stone; rather it explicity stated it would

be willing to accept a statute as long as six years if that

should be the period of time adopted by a state for actions

to vacate arbitration awards. United Parcel Service, Inc.

v. Mitchell, 451 U.S. at 64, 101 S.Ct. at 1564. Here, Texas

has implicitly rather than explicitly provided for a four

year limitation for arbitration actions. After Mitchell we

should honor this state determination.

Moreover, in Hoosier Cardinal the Court implicitly

opted for as many as fifty different limitations of up to

six years in at least some § 801 actions. While rapidity

and uniformity are goals, the Supreme Court has provided

no clear path to these goals nor has it consistently imple-

mented these goals. The limitations period adopted by

Texas is shorter than the ones suggested in either Mitchell

or Hoosier Cardinal. Thus we cannot say acceptance of

the Texas statute is any less reasonable or more incon-

sistent than that accepted by the Court in Mitchell or

Hoosier Cardinal when faced with competing concerns.

We do not, at this point, reject the Texas four-year period

of limitations.

If we, however, are to attemp to move toward these

articulated, but not necessarily implemented, goals of

rapidity and uniformity we must answer a final question:

whether there exists an appropriate federal statute of

limitations, before we can fully answer the question

whether, considering the apparent inconsistency with na-

tional labor policy, we should adopt the Texas four-year

limitation.

3. An appropriate federal limitation?

The Union has suggested application of the limitation

contained in the Federal Arbitration Act," 9 U.S.C. § 12,

14 See note 3, supra.

29a

of ninety days or, in the alternative, the six-month limita-

tion of §10(b)'* of the NLRA suggested by Justice

Stewart in his concurrence in Mitchell. While either of

these statutes would provide for a shorter limitation than

the Texas statute, there are problems with the adoption of

either.

The Federal Arbitration Act specifically excludes con-

tracts of employment of “seamen, railroad employees, or

any other class of workers engaged in foreign or inter-

state commerce.” 9 U.S.C. §1. The district court rea-

soned that the Federal Arbitration Act could, however,

apply because “ ‘it has been held that judicial decisions

making arbitration clauses specifically enforceable, have

the effect of making labor contracts indistinguishable from

other contracts governed by the [Federal Arbitration

Act}].” Gas Workers Local No. 80 v. Michican Consoli-

dated Gas, 503 F.Supp. 155, 157 (E.D.Mich.1980). More-

over, according to the district court, the limitations period

of the federal act is appropriate because since “this case

indisputably involves interstate commerce, there is no

question that this Court may... ‘fashion a uniform rule

after consideration of the relevant federal and state

statutes.’ ”

It is, however, precicely because this action involves

interstate commerce in the transportation industry that

the exclusionary language of § 1 of the Federal Arbitra-

tion Act applies. Although some district courts have ap-

plied the Federal Arbitration Act in spite of Congress’

exclusion, Gas Workers, supra, we will not do what Con-

gress has refused to do; we will not change the limitations

of the Federal Arbitration Act by judicial fiat. Such

change is within the province of the legislative branch,

not the courts.

The Union further argues that the Federal Arbitration

Act may be applied because the exclusion stated in §1

15 See note 5, supra.

30a

merely means that the Federal Arbitration Act does not

fit “hand in glove” with a § 301 action. Whatever per-

suasive force that argument had with respect to state

statutes of limitation which fail to fit “hand in glove”

with federal causes of action, it carries no force with re-

spect to a federal statute of limitations as it might apply

to a federal cause of action. We simply will not invent,

by judicial decree, a statute of limitations where Con-

gress has failed to do so. See Hoosier Cardinal, 383 U.S.

at 703, 86 S.Ct. at 1111.

Sea-Land argues that collective bargaining agreements

such as the one in the case before us are not contracts of

employment excluded under § 1. It relies on a Supreme

Court decision in which arbitration under a collective bar-

gaining agreement was enforced, it claims, under the Fed-

eral Arbitration Act. Lincoln Mills of Alabama v. Textile

Workers of America, 230 F.2d 81 (5th Cir. 1956), rev'd,

353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Lincoln

Mills involved an action brought by a union against an

employer for specific enforcement of a collective bargain-

ing agreement to submit employee grievances to arbitra-

tion. The appellate court had found no authority in state

or federal law to order such arbitration. The Supreme

Court found the authority in federal law, specifically in

§ 301 of the LMRA. It did not determine, or by its

silence imply, that it was the Federal Arbitration Act

which applied to this action to enforce arbitration. It

was instead the collective bargaining agreement between

the union and the employer, the breach of which was cog-

nizable under § 301, which gave life to the action. Jd., 353

U.S. at 450-58, 77 S.Ct. at 914-918. See Chauffeurs,

Teamsters, Warehousemen and Helpers, Local Union No.

135 v. Jefferson Trucking Company, Inc., 628 F.2d 1023,

1025 (7th Cir. 1980), cert. denied, 449 U.S. 1125, 101

S.Ct. 942, 67 L.Ed.2d 111 (1981) (Section 301, not the

Federal Arbitration Act, provides the basis for an action

to vacate an arbitration agreement.). We cannot, on the

basis of Lincoln Mills, ignore the exclusion of § 1.

3la

Finally, the Union asserts that the 6-month limitation

of § 10(b) of the National Labor Relations Act '’ applies.

This action, however, only applies to unfair labor practices

as delineated in the NLRA, 29 U.S.C. § 158(b), 159(a).

A § 301 action against an employer is not such an action.

Section 10(b) is not appropriate. See United Parcel Serv-

ice, Inc. v. Mitchell, 451 U.S. at 76, 101 S.Ct. at 1571

(Stevens, J., concurring in part, dissenting in part).

In conclusion, because there is no appropriate federal

statute of limitations as to the § 301 action against the

employer, we apply the four-year Texas limitation.'’

While application of this state statute does not portend

uniformity in § 301 actions, neither the Supreme Court in

its decisions nor Congress in its legislation has given us

a path to uniformity. Because no other statute is more

“appropriate,” until legislative action is taken to change

the present state of affairs, the four year Texas statute

of limitations governs this action against the employer.

B. “Unfair Representation” Statute of Limitations

An action for breach of duty of fair representation

has been characterized as in the nature of a tort action

by this court. Cow v. C. H. Masland & Sons, Inc., 607

F.2d 138, 143 (5th Cir. 1979) ; Sanderson v. Ford Motor

Company, 483 F.2d 102, 114 (5th Cir. 1973). The statute

of limitations in Texas for a tort action is two years.

Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon 1981). The

question then, must be: does Mitchell preclude continua-

tion of this tort characterization, mandate a new charac-

terization and perhaps require application of a new statute

of limitations? We find it does not.

The Court, in a footnote in Mitchell, reasoned that the

action before it against the employer could not be char-

acterized in the nature of a tort:

16 See note 5, supra,

17 See note 13, supra,

82a

All of these characterizations suffer from the same

flaw as the effort to characterize the action as one for

breach of contract: they overlook the fact that an

arbitration award stands between the employee and

any relief which may be awarded against the com-

pany.

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 62 n.4,

101 S.Ct. at 1564 n.4.

The action against the Union, however, is an inde-

pendent action which does not require the same charac-

terization as the § 301 claim against the employer. Be-

cause no arbitration award stands between the employee

and a recovery against the Union, this tovtnote in Mitchell

is inapposite to the claim here against the Union. See Id.

at 1570 (Stevens, J., concurring in part and dissenting in

part). This action for breach of duty of fair representa-

tion, may, after Mitchell, continue to be characterized as

a type of tort action. Accord, Flowers v. Local 2602 of

United Steel Workers, 671 F.2d at 90.

We also decline to adopt the § 10(b) limitation sug-

gested by Justice Stewart in Mitchell. We agree with

Justice Stevens that § 10(b) does not apply to this claim

of breach of duty of fair representation for the reasons

he stated in Mitchell:

The Nationa] Labor Relations Act was enacted in

1935. 49 Stat. 449. Although § 10(b) was a part of

the Act at that time, in its original form it did not

contain a period of limitations. 49 Stat. 453-454.

The 6-month limitations period under which Justice

Steward relies was added to § 301(b) in 1947. 61

Stat. 146. Six years later, the Court decided the first

in a series of cases recognizing that the National

Labor Relations Act imposes a duty of fair repre-

sentation upon unions. See Ford Motor Co. v. Huff-

man, 345 U.S. 330 [73 S.Ct. 681, 97 L.Ed. 1048]. In

1967, in Vaca v. Sipes, 386 U.S. 171 [87 S.Ct. 903,

83a

17 L.Ed.2d 842], the Court clearly held that this duty

may be judicially enforced. See generally Hines v.

Anchor Motor Freight, Inc., 424 U.S. 554, 5638-567

[96 S.Ct. 1048, 1055-1057, 47 L.Ed.2d 281).

United Parcel Service, Inc. v. Mitchell, 451 U.S. at 76 n.9,

101 S.Ct. at 1571 n.9 (Stevens, J., concurring in part,

dissenting in part). We adopt the position of the Second

Circuit:

We are persuaded by Justice Stevens’ view that sec-

tion 10(b) is inapplicable both because it relates only

to administrative procedures established by Congress

to resolve unfair labor practices (see Justice Stew-

art’s concurrence) and because it was adopted by

Congress six years before the duty of fair representa-

tion was recognized,

Flowers v. Local 2602 of United Steel Workers, 671 F.2d

at 90,

We reverse the district court’s dismissal of the Plain-

tiffs’ claim against both Sea-Land and the Union and

remand to the district court. Because the suit was brought

only one year after the denial of the award in the arbitra-

tion proceeding, it was timely brought as to both Sea-

Land and the Union.

Defendants shall bear the cost of this appeal.

REVERSED and REMANDED.

84a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No, H-81-738

NORMAN E, EDWARDS, et al.,

Plaintiffs

vs.

SEA-LAND SERVICE, INC., et al.,

Defendants.

MEMORANDUM AND ORDER

This is a labor relations dispute. Plaintiffs here sue

their employer for breach of contract and their union for

breach of the duty of fair representation. Jurisdiction is

based on Section 301 of the Labor Management Relations

Act, 29 U.S.C. § 185.

A

Plaintiffs Norman E. Edwards and Bobby Wayne Mize

were employed as truck drivers for Defendant Sea-Land

Service, Inc., for over twenty (20) years. On December

27, 1978, Plaintiffs received a two-day notice of lay off

under Article 46 of the National Master Freight Agree-

ment and Southern Conference Area (NMF A).

On January 2, 1979, Plaintiffs filed their grievance re-

port with the International Brotherhood of Teamsters,

Chauffeurs, Warehousers and Helpers of America, Local

Union No. 988, in which they were members. In the report

Plaintiffs stated that Sea-Land Service, Inc. (Sea-Land)

had terminated their employment in order to effect a trans-

fer to the International Longshoreman’s Association.

On January 15, 1979, Sea-Land notified Plaintiffs that

they were being dismissed, pursuant to Article 42 of the

35a

National Master Freight Agreement. On April 1, 1980,

Plaintiffs received notice that the Southern Conference

Area Grievance Committee had refused to reinstate Plain-

tiffs to their previous positions.

On April 21, 1981, Plaintiffs filed this suit alleging that

Sea-Land violated the NMFA, that Teamsters Local No.

988 breached its duty of fair representation in violation of

29 U.S.C. § 141, that Local 988 and Sea-Land conspired

to permit Plaintiffs’ discharge to stand, that negotiations

between Plaintiffs and Defendants were carried on in bad

faith, and that Plaintiffs were not reinstated due to age

discrimination on the part of the Defendants.

Plaintiffs seek reinstatement and full back pay, without

any break in their seniority or pension benefits.

II,

Defendant Sea-Land has filed a motion to dismiss assert-

ing that Plaintiffs’ cause of action is barred by the Statute

of Limitations. In the alternative, Sea-Land pleads that

Plaintiffs have failed to state a cause of action for which

relief may be granted and that Plaintiffs’ age discrimina-

tion claim fails to allege the requisite jurisdictional facts.

The limitations defense is based on Sea-Land’s assertion

that this is an action to vacate an arbitration award. The

Texas statute of limitations on actions to vacate arbitra-

tion awards is 90 days. Tex.Rev.Civ.Stat.Ann. art. 237,

sec. B. The federal statute of limitations is tliree months.

Federal Arbitration Act, 9 U.S.C, § 12.

Plaintiffs’ response asserts that the 90 day state limita-

tion period is not applicable in this case, citing Article 224

(a) of the Texas General Arbitration Act which states:

“(none of the provisions of this Act shall apply to: any

collective bargaining agreement between an employer and

a labor union.” Plaintiff urges application of the Texas

four-year statute of limitations applicable to actions on

contracts, Tex.Rev.Civ.Stat.Ann. art. 5527, and cites

86a

Hensley v. United Transports, Inc., 846 F.Supp. 1108

(N.D. Tex. 1972), in support of that contention. Hensley

held that arts. 5527 and 5529 were applicable to suits by

employees against their employer and union. /d. at 1115.

Plaintiff also relies on International Union, UAW ».

Hoosier Cardinal Corp., 383 U.S. 696, 704-705 (1966).

That case held that “the time limits of a section 301 suit

... is to be determined, as a matter of federal law, by ref-

erence to the appropriate state statute of limitations.”

However, the Supreme Court in Hoosier Cardinal expressly

limited its decision to damage actions. /d., at 705 n.7.

The threshold issue presented by Defendants’ motion is

whether the action was timely filed in this Court. The law-

suit was filed one year after Plaintiffs received notice that

their grievance would not be sustained by the grievance

committee. If the four-year limitations period for actions

on contracts is not applicable, Plaintiffs’ suit is barred.

The starting point in any analysis of this question must

be the realization that “in actions brought under the Labor-

Management Relations Act, the Supreme Court has evinced

a desire for uniformity in order to mold a national labor

policy.” Communications Workers of America v. Pac. Tel.

and Tel., 462 F.Supp. 736, 737 (C.D. Cal. 1978), citing,

Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct.

571, 7 L.Ed.2d 593 (1962), and T'extile Workers v. Lincoln

Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed2d 972 (1957).

Like Pac, Tel & Tel., supra, the case at bar is brought

under § 301 of the Labor Management Relations Act, 29

U.S.C. § 185—it follows that the Court should incline to-

wards the application of federal law: “the dimensions of

§ 301 require the conclusion that substantive principles of

federal labor law must be paramount in the area covered

by the [federal] statute.” /d. at 738. Although the Fed-

eral Arbitration Act technically exempts contracts of em-

ployment from its coverage, 9 U.S.C. § 1, “it has been held

that judicial decisions making arbitration clauses specifi-

cally enforceable, have the effect of making labor contracts

indistinguishable from other contracts governed by the

37a

[Federal Arbitration Act].” Gas Workers Local No. 80 v.

Mich. Consolidated Gas, 503 F.Supp. 155, 157 (E.D. Mich.

1980) ; Keystone Metal Molding, Etc. v. R & W Metals,

486 F.Supp. 812, 813 (D. Mont. 1980). Moreover, in the

case at bar Texas law need not apply since this action, by

Plaintiffs’ own admission, involves interstate commerce.

Plaintiffs’ Original Complaint, Paragraphs 2 and 4. See,

Miller v. Puritan Fashions Corporation, 516 S.W.2d 234,

238 (Tex.Civ.App.-Waco 1974, writ ref’d n.r.e.). Since

this case indisputably involves interstate commerce, there

is no question that this Court may do what was suggested

in the dissent in Hoosier Cardinal, supra at 709, and “fash-

ion a uniform rule after consideration of the relevant fed-

eral and state statutes.” Keystone Metal, supra at 813. In

such a case the three-month limitation period expressed in

9 U.S.C. § 12 would clearly be applicable.

Another conclusion is possible under the Supreme

Court’s most recent decision on this question. In United

Parcel Service ». Mitchell, —— U.S. ——, 49 U.S.L.W.

4378 (decided April 20, 1981), the Court was faced with

a problem which was very similar to this one. The plaintiff

had been discharged. He brought an action against his

employer for breach of contract and his union for breach

of its duty of fair representation [when an arbitration

committee refused to reinstate him]. The district court

ruled that the suit was analogous to an action to vacate

an arbitration award and applied the appropriate state

statute of limitations, which was 90 days. The Court of

Appeals for the Second Circuit reversed, holding that the

state’s six-year limitation period on contract actions was

controlling.

The Supreme Court reversed the Court of Appeals and

held that the applicable statute of limitations was the state

statute governing actions to vacate an arbitration award.

The Court noted that “one of the leading federal policies

in this area is the policy favoring relatively rapid disposi-

tion of labor disputes.” Id., at 4379.

38a

In Mitchell the Court was faced with a choice between

New York’s six-year limitations period for actions on a

contract and its 90-day period for actions brought to vacate

arbitration awards. In the case at bar this Court is faced

with a choice between the Texas four-year statute and

either the federal three-month or state 90-day statute to

vacate arbitration awards. In light of Mitchell there can

be no doubt that this is an action to vacate the arbitration

award which sustained Plaintiffs’ discharge since the judg-

ment they seek, if granted, would have the practical effect

of giving them the relief they sought before the grievance

committee. If it were not for the exclusionary language

in Tex.Rev.Cit.Stat.Ann. art 224(a) the Texas 90-day

limitations period would clearly be appropriate. As noted

above, art. 224(a) exempts actions based on collective bar-

gaining agreements from the provisions of the General Ar-

bitration Act. However, the Supreme Court in Mitchell,

Id., noted that “the unfair representation claim made by

an employee against his union, even though his employer

may ultimately be called upon to respond in damages for

it if he is successful, is more a creature of “labor law” as

it has developed since the enactment of § 301 than it is of

general contract law.” Applying the foregoing language

to art. 224(a) it is apparent that an action to vacate an

arbitration award, pursuant to § 301, is not such an action

in a collective bargaining agreement as would bring the

statutory bar into play.

Furthermore, a collective bargaining agreement has been

described as “a generalized code to govern a myriad of

cases which the draftsmen cannot wholly anticipate. Such

a code governs day t7 day operations . . . where an arbitra-

tion clause exists, it is the arbitration which answers dis-

putes as to the interpretation of the contract... Certainly,

when an award has been made it is in the interest of labor

peace to apply immediately the interpretation afforded by

the arbitration, and it is not compatible with national labor

policy or national arbitration policy to delay the finality

39a

of the arbitration award. ...” Keystone Metal, supra at

813.

ITI.

In light of the foregoing, it is clear that either the fed-

eral three-month or state 90-day statute of limitations on

actions to vacate an arbitration award is applicable. It

follows that Plaintiffs’ action in the present case is barred

by limitations. Accordingly, Defendant’s motion to dismiss

is GRANTED. In light of the disposition made herein,

the other points raised by Defendants need not be reached.

Done at Houston, Texas, this 22nd day of June, 1981.

/s/ Norman Black

NORMAN W. BLACK

United States District Judge

40a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-81-738

NorMAN E. EDWARDS and BOBBY WAYNE MIZE,

Plaintiffs

vs.

Sea LAND SERVICE, INC. and THE INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

LOCAL UNION No. 988,

Defendants.

ORDER

Pending before the Court is Defendant International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, Local Union No. 988’s motion to

dismiss. By letter dated May 22, 1981, the Teamsters

Union joined in Defendant Sea Land’s motion to dismiss.

It further appears that the Court’s reasoning as set out

in the Memorandum and Order filed June 22, 1981, is ap-

plicable to the Defendant Union as well as the Defendant

Employer. Accordingly, Plaintiff’s action against the De-

fendant International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America, Local Union

No. 988 is DISMISSED.

Done at Houston, Texas, this 24th day of July, 1981.

/s/ Norman Black

NORMAN W. BLACK

United States District Judge

4la

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-81-738

NORMAN E. EDWARDS and Boppy WAYNE Mize,

a. Plaintiffs,

SEALAND SERVICE, INC. and THE INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA,

LOCAL UNION No. 988,

Defendants.

JUDGMENT

This action came on for hearing for the Court, Honor-

able Norman W. Black, District Judge presiding, and the

issues having been duly heard and a decision having been

duly rendered by memorandum and order of June 22,

1981, order dated July 24, 1981 and further order of Au-

gust 4, 1981.

IT IS ORDERED and ADJUDGED that Plaintiffs take

nothing, that the actions be dismissed on the merits, and

that Defendants, SEALAND SERVICE, INC. and

THE INTERNATIONAL BROTHERHOOD OF TEAM-

STERS, CHAUFFEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA, LOCAL NO. 988, recover of

Plaintiffs’ their costs of action.

Dated at Houston, Texas this 31st day of August, 1981.

/s/ Norman Black

NORMAN W. BLACK

United States District Judge

SIGNED and ENTERED this —— day of ——, 1981.

Clerk of the Court

42a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-2283

NORMAN E, EDWARDS and BoBBY WAYNE MIZE,

Plaintiffs-A ppellants,

versus

SEALAND SERVICE, et al.,

Defendants-A ppellees.

[Filed Aug. 25, 1982]

Appeal from the United States District Court for the

Southern District of Texas

ON SUGGESTIONS FOR REHEARING EN BANC

(Opinion June 24, 1982, 5 Cir., 198—, ——- F.2d ——»)

(August 25, 1982)

Before THORNBERRY, REAVLEY and RANDALL, Circuit

Judges.

PER CURIAM:

(x) Treating the suggestions for rehearing en bane as

petitions for panel rehearing, it is ordered that the peti-

43a

tions for panel rehearing are DENIED. No member of

the panel nor Judge in regular active service of this

Court having requested that the Court be polled on re-

hearing en bane (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the suggestions

for Rehearing En Bane are DENIED.

( ) Treating the suggestions for rehearing en banc as

petitions for panel rehearing, the petitions for panel re-

hearing are DENIED. The judges in regular active serv-

ice of this Court having been polled at the request of one

of said judges and a majority of said judges not having

voted in favor it it (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the suggestions

for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ [{Illegible]

United States Circuit Judge

44a

APPENDIX F

SUPREME COURT OF THE UNITED STATES

No. A-429

SEA-LAND SERVICE, INC. and INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS, LOCAL No. 988,

Petitioners,

Vv.

NORMAN E. EDWARDS and BoBBY WAYNE MIZE

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application for counsel for

petitioner (s),

IT Is ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 22,

1982

/s/ BYRON R. WHITE

Associate Justice of the Supreme

Court of the United States

Dated this 10th day of November, 1982

45a

APPENDIX G

STATUTES

9 U.S.C. § 12

Notice of a motion to vacate, modify, or correct an

award must be served upon the adverse party or his at-

torney within three months after the award is filed or

delivered. If the adverse party is a resident of the district

within which the award was made, such service shall be

made upon the adverse party or his attorney as prescribed

by law for service of notice of motion in an action in the

same court. If the adverse party shall be a nonresident

then the notice of the application shall be served by the

marshal of any district within which the adverse party

may be found in like manner as other process of the

court. For the purposes of the motion any judge who

might make an order to stay the proceedings in an action

brought in the same court may make an order, to be

served with the notice of motioa, staying the proceedings

of the adverse party to enforce the award.

July 30, 1947, ¢.392, 61 Stat. 673.

29 U.S.C. § 160(b)

Whenever it is charged that any person has engaged

in or is engaging in any such unfair labor practice, the

Board, or any agent or agency designated by the Board

for such purposes, shall have power to issue and cause

to be served upon such person a complaint stating the

charges in that respect, and containing a notice of hear-

ing before the Board or a member thereof, or before a

designated agent or agency, at a place therein fixed, not

less than five days after the serving of said complaint:

Provided, That no complaint shall issue based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge with the Board and the

service of a copy thereof upon the person against whom

such charge is made, unless the person aggrieved thereby

was prevented from filing such charge by reason of serv-

ice in the armed forces, in which event the six-month

46a

period shall be computed from the day of his discharge.

Any such complaint may be amended by the member,

agent, or agency conducting the hearing or the Board in

its discretion at any time prior to the issuance of an

order based thereon. The person so complained of shall

have the right to file an answer to the original or

amended complaint and to appear in person or otherwise

and give testimony at the place and time fixed in the

complaint. In the discretion of the member, agent, or

agency conducting the hearing or the Board, any other

person may be allowed to intervene in the said proceed-

ing and to present testimony. Any such proceeding shall,

so far as practicable, be conducted in accordance with

the rules of evidence applicable in the district courts of

the United States under the rules of civil procedure for

the district courts of the United States, adopted by the

Supreme Court of the United States pursuant to section

2072 of Tile 28.

29 U.S.C. § 185 (a)

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees in

an industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be brought

in any district court of the United States having jurisdic-

tion of the parties, without respect to the amount in con-

troversy or without regard to the citizenship of the

parties.

e o a oe

Article 224. Tex.Rev.Civ.Stat.Ann.

A written agreement to submit any existing con-

troversy to arbitration or a provision in a written con-

tract to submit to arbitration any controversy thereafter

arising between the parties is valid, enforceable and

irrevocable, save upon such grounds as exist at law or

in equity for the revocation of any contract. A court

shall refuse to enforce an agreement or contract provi-

sion to submit a controversy to arbitration if the court

A47a

finds it was unconscionable at the time the agreement

or contract was made. Provided, however, that none of

the provisions of this Act shall apply to:

(a) any collective bargaining agreement between

an employer and a labor union.

Art. 237. Tex.Rev.Civ.Stat.Ann,

Sec. A. Upon application of a party, the court shall

vacate an award where:

(1) The award was procured by corruption, fraud or

other undue means;

(2) There was evident partiality by an arbitrator ap-

pointed as a neutral or corruption in any of the arbi-

trators or misconduct or willful misbehavior of any of the

arbitrators prejudicing the rights of any party;

(3) The arbitrators exceeded their powers;

(4) The arbitrators 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 Article

228, as to prejudice substantially the rights of a party; or

(5) There was no arbitration agreement and the issue

was not adversely determined in proceedings under Article

225 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.

Sec. B. An application under this Article shall be made

within ninety days after delivery of a copy of the award

to the applicant, except that, if predicated upon corrup-

tion, fraud or other undue means, it shall be made within

ninety days after such grounds are known or should have

been known.

48a

Art. 5526. Tex.Rev.Civ.Stat.Ann.

There shall be commenced and prosecuted within two

years after the cause of action shall have accrued, and

not afterward, all actions or suits in court of the follow-

ing description:

1. Actions of trespass for injury done to the estate or

the property of another.

2. Actions for detaining the personal property of an-

other, and for converting such property to one’s own use.

8. Actions for taking or carrying away the goods and

chattels of another.

4. Actions for debt where the indebtedness is not evi-

denced by a contract in writing.

5. Actions upon stated or open accounts, other than

such mutual and current accounts as concern the trade of

merchandise between merchant and merchant, their factors

or agents. In all accounts, except those between merchant

and merchant, as aforesaid, their factors and agents, the

respective times or dates of the delivery of the several

articles charged shall be particularly specified, and limita-

tion shall run against each item from the date of such

delivery, unless otherwise specially contracted. Acts 1841,

p. 168; G.L. vol. 2, p. 627.

6. Action for injury done to the person of another.

7. Action for injury done to the person of another

where death ensued from such injury; and the cause of

action shall be considered as having accrued at the death

of the party injured. Acts 1897, p. 12; Acts 1841, p. 163;

Acts 1852, p. 128; P.D. 4604; G.L. vol. 10, p. 1066; G.L.

vol. 2, p. 627; G.L. vol. 3, p. 1006.

8. Actions of forcible entry and forcible detainer.

Art. 5529. Tex.Rev.Civ.Stat.Ann.

Every action other than for the recovery of real estate,

for which no limitation is otherwise prescribed, shall be

brought within four years next after the right to bring

the same shall have accrued and not afterward.