# Petition — International Brotherhood of Teamsters v. Edwards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0155%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1127 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0155%3A1. Public record. Not legal advice.