Petition for Writ of Certiorari — Harkins v. Interstate Motor Freight Systems

<n

Office - Supreme Court, U.S

FILED

APR 4 1984

sas ALEXANDER L. STEVAS.,

IN THE SUPREME COURT OF THE ITED GERABES

OCTOBER TERM, 1983

WILLIAM HARKINS, et al.

Petitioners

VS.

INTERSTATE MOTOR FREIGHT SYSTEMS, et al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

PAUL H. TOBIAS

Tobias & Kraus

911 Clopay Buiiding

105 East Fourth Street

Cincinnati, Ohio 45202

(513) 241-8137

Attorney for Petitioners

A en

SUPREME COURT of the UNITED STATES

Term October, 1983

No.

WILLIAM HARKINS, et al., Petitioners

vs.

INTERSTATE MOTOR FREIGHT SYSTEMS, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

To the Honorable Chief Justice and the

Honorable Associates Justices of the

Supreme Court of the United States:

Petitioners William Harkins, et al.

pray that a writ of certiorari issue

to review the judgment of the United

State Court of Appeals for the Sixth

Circuit, entered on January 5, 1984,

Case Nos. 82-3188 and 82-3392 on the

docket of that Court.

Should the decision in DelCostello

v. I.B.T., 103 S.Ct. 2281 (1983), be

prospective only or be retroactively

applied?

tes. — - a) iin as ee ee ee ee a

PARTIES TO THE PROCEEDING

The parties to this proceeding

are Petitioners: William Harkins,

Jack Stamey and William R. Calhoun,

(who will hereinafter be referred

to collectively as "Petitioners") ;

Freight System, Local Union #100,

Joseph Carlotta, Dallas Barnes,

Jack O'Banion and Bud Davis (here-

inafter referred to collectively

as "Respondents").

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

GROUNDS ON WHICH JURISDICTION OF THIS

COURT IS INVOKED 2

QUESTION PRESENTED

STATEMENT OF THE CASE

HOW FEDERAL QUESTIONS WERE RAISED

ARGUMENT FOR ALLOWANCE OF THE WRIT

I. THE LOWER COURT ERRED IN ITS

CURSORY DISMISSAL OF THIS CASE,

DISREGARDING THE STANDARDS SET

FORTH BY THIS COURT IN CHEVRON

OIL VS. HUSON, 404 U.S. 97 (1971)

FOR DETERMINING WHEN A STATUTE

OF LIMITATIONS MAY BE GIVEN

RETROACTIVE EFFECT. . .... «

II. A WRIT OF CERTIORARI IS NECESSARY

TO RESOLVE THE CONFLICTS THAT

EXIST AMONG THE CIRCUIT COURTS

AND WITHIN THE SIXTH CIRCUIT ON

THE ISSUE OF THE RETROACTIVITY

OF DELCOSTELLO v. I.B.T., 103

S.CG. 2464 (L9G3) «© « «© © wo

CONCLUSION. . .« «© © © © © © @ «

PRAYER. . «© «© © © «© © © @

AFFIDAVIT OF SERVICE .. .

13

16

17

18

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

WTLLIAM HARKINS, et al.

Petitioners

Vs.

INTERSTATE MOTOR FREIGHT SYSTEMS, et al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

PAUL H. TOBIAS

Tobias & Kraus

911 Clopay Building

105 East Fourth Street

Cincinnati, Ohio 45202

(513) 241-8137

Attorney for Petitioners

Appendix A-

Order of United States Court of

Appeals for the Sixth Circuit,

dated January 5, 1984 ........ A-l

Appendix B-

Order of the United States Court

of Appeals for the Sixth Circuit,

Gated June 13, 1983 ....+.+.+.e« + Bel

Appendix C-

Order and Opinion of United States

District Court for the Southern

District of Ohio, Western Division,

filed February 8, i982.

'-

|

r

Appendix D-

Memorandum and Order of United

States District Court for the

Southern District of Ohio, Western

Division, dated March 8, 1982 .... D-l

Appendix E-

Unreported Opinion of the United

States Court of Appeals for the

Sixth Circuit in LaBond vs. McLean

Trucking Company, Case No. 82-1576,

Gated August 15, 1983 ...+«+e«-e«e«+. E

Appendix F-

Affidavit of Haskell Bazell, dated

September 18, 1981 ......... Fel

ii

CITATIONS

Badon v. G.M.C., 679 F 93 (6th

Cif. iL9eZ) ee eg ae

Barina v. Gulf Trading & Trans-

portation Co., 100 LC 10,821

(9th Cir. 1984) ; <>

Chevron Oil Co. v.

Uses SF taneel

Huson, 404

Curtis v. Teamsters, Local 299,

716 Fog 360 (6th Cir. 1983).

DelCostello v. International

Brotherhood of Teamsters, 103

S$.Ce. 248i tides)

Devries v. Interstate Motor

Freight System, 91 LRRM 2765

(ND of Ohio,January 7, 1976)

Dill v. Wood Shovel & Tool Co.,

68 LC 12,685 (SD of Ohio, 1976).

Edwards v. Teamsters, Local 36,

719 P54 1036 (9th Cir. 1983)

Englesburg v. Transcom Lines,

Inc., 530 F.Supp. 628 (WD of

Wash., 1982) .. * © «6

iii

11-14,

13,14

14

Gray v. International Assn.,

416 Pog Jae (etn Cir. 1969)

Kennard v. United Parcel Service,

Inc., 531 F.Supp. 1139 (ED of

Mich., 1962). ee

LaBond v. McLean Trucking Co.,

No. 82-1576 (6th Cir. 1983)

baneoan VW. Dastrict 9, I.A.M.,

99 LC 10,665 (8th Cir. 1983)

McFarland v. I.B.T., 535 F.Supp.

SSD > 2

McNaughton v. Dillingham Corp.,

99 uC 10,688 (9th Cir. 1984)

Perez v. Dana Corp., Parish

Frame Div., 718 Fog 581 (3rd

| ee ee ee

Pitts v. Frito Lay, Inc., 700

Pog 330 (6th Cir. 1983)

Rogers v. Lockhead-Georgia Co.,

720 Fog 1247 (llth Cir. 1983)

Singer v. Flying Tiger Line,

inc., 652 Fog 1349 (9th Cir. 1981)

Smart v. Ellis Trucking Co.,

580 Fog 215 (6th Cir. 1978)

Tally v. U.S. Postal Service,

532 F.Supp. 786 (D. of Minn. 1982)

iv

bo

14

10,13

Aa

14

10,14

14

bo

14

United Parcel Service, Inc. v.

Miteneil, 451 U.S. 36, L90L §&.Ct.

oan Clee «Sk 4" S'S ee Coe ee eee

OTHER AUTHORITIES

Comment: "Statute of Limitations

Governing Fair Representation Actions

Against Unions When Brought With

Section 301 Action Against Employer" 7

44 George Washington Law Review, 418,

424 n.40-42 (1976) . «+ © e ses ew se we oo

SUPREME COURT of the UNITED STATES

Term October, 1983

No.

WILLIAM HARKINS, et al., Petitioners

vs.

INTERSTATE MOTOR FREIGHT SYSTEMS, et al.

Respondents

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

To the Honorable Supreme Court of the

United States of America:

Petitioner respectfully petitions this

Honorable Court to grant a writ of certi-

Oorari to the United States Court of Appeals

for the Sixth Circuit to review a judgment

of that Court which affirmed an order of

the United States District Court, Southern

District of Ohio, Western Division, sus-

taining the Respondents' motion for summary

judgment. In its behalf, Petitioners show

unto this Court:

OPINIONS BELOW

The order of the United States Court

of Appeals for the Sixth Circuit, dated

January 5, 1984, is attached hereto at

Appendix A. The order of the United

States Court of Appeals for the Sixth

Circuit, dated June 13, 1983, is attach-

ed hereto at Appendix B. The order and

vi

opinions of the United States District

Court for the Southern District of Ohio,

Western Division, filed February 8, 1982,

and March 8, 1982, are attached hereto

as Appendix C and D.

GROUNDS ON WHICH JURISDICTION OF

The decision sought to be reviewed

is that of the United States Court of

Appeals for the Sixth Circuit, dated

June 13, 1983, and the order of that

Court, dated January 5, 1984.

The statutory provision believed to

confer jurisdiction on this Court to

review the judgment below by writ of

certiorari is Section 1254 of Title 28

U.S.C.A., which provides that cases in

the United States Court of Appeals may

be reviewed by the Supreme Court by writ

of certiorari.

Should the DelCostello decision be

prospective only or be retroactively

applied?

vil

STATEMENT OF THE CASE

This was an action for breach of contract

and for unfair representation, filed on May

1, 1975. Plaintiffs alleged that Defendant

Interstate breached the National Master ™

Freight Agreement in October, 1973, causing

Plaintiffs to be terminated. The original

complaint also alleged that Defendant Local

100 Teamsters Union failed to provide ad-

equate representation with respect to joint

committee hearings held in 1973, 1974 and

1975 and was engaged in a pattern of unfair

representation with respect to Plaintiffs'

efforts to obtain reinstatement and back

pay. In September 1977, Plaintiffs a-

mended the complaint. They alleged additional

and related breach of contract claims and

unfair representation concerning December

1976 grievance hearings.

During the period May 1975 - September

1977, the applicable statute of limitations

for 301-DFR suits was lengthy -- in excess

of four years. The Sixth Circuit, in Gray

vs. International Association, 416 Pog 3.3

(6th Cir. 1969), approved the application

of a six year Kentucky statute in an unfair

representation case against a union. In

Ohio there were two cases where the Court

ruled that a lengthy statute applied:

Devries vs. Interstate Motor Freight System,

91 LRRM 2765 (N.D. of Ohio, January 7,

1976); Dill vs. Wood Shovel & Tool Co.,

68 L.C. 12,685 (S.D. of Ohio 1972). 2/

Plaintiffs' attorney Bazell justifiably

relied upon a lengthy limitation period at

the time (1975 and 1977) when the complaints

were filed. His affidavit states:

". . .2. At the time and during

the time I represented Plaintiffs

it was my opinion that the Statute

of Limitations for 301 suits for

breach of contract against the

employer was in excess of two years.

l/ The rule of thses cases was reaffirmed

by the Sixth Circuit in Smart v. Eliis

Trucking Co., 580 Pog 215 (6th Cir. 1978).

2

3. I knew of no trend of cases

or weight of authority holding

that suit against Interstate

would have to be filed within 90

days or within the period used

for suits to vacate an arbitration

award.

4. I relied upon my belief that

a contract or tort statute of

limitations applied in determin-

ing when the deadline was for

filing claims of Plaintiffs a-

gainst Interstate.”

In United Parcel Service, Inc., vs. Mitchell,

101 S.Ct. (1981), this Court dramatically

changed the law by holding that the most

analogous and therefore most applicable

statute of limitations was a very short

state statute governing actions to vacate

arbitration awards.

In late July 1981, about one year after

petition for certiorari was filed in

Mitchell and six years after suit had been

filed, Defendants moved to amend their

answers to add the statute of limitations

as a defense. The District Court permitted

the amendments and subsequently dismissed

the complaint based upon Mitchell (Appendix

Ci). |

On June 13, 1983, the United States

Court of Appeals for the Sixth Circuit

issued its Order affirming the District

Court's dismissal. (Appendix B.)

On June 8, 1983, this Court in Del

Costello vs. International Brotherhood

of Teamsters, 103 S.Ct. 2281

held that @ six month federal statute

governs 301-DFR actions.

On January 5, 1984, the Sixth Circuit

issued an order concluding that DelCostello

did not affect the validity of its June 13,

1983 order, dismissing the instant case.

(Appendix A). It is this decision which

Petitioners now seek to bring before this

Honorable Court for its review.

ee ee ee

Federal questions herein were raised

in the briefs in the United States Court

of Appeals for the Sixth Circuit.

a nee ee

ARGUMENT: AMPLIFYING REASONS RELIED

ON FOR ALLOWANCE OF THE WRIT

he The Lower Court Erred In Its

Forth by This Court In Chevron

In Chevron Oil vs. Huson, 404 U.S.

| 97 (1971), this Court set out a three

part test to be followed in determining

ae ey Nae

when a decision should be denied retro-

active application:

"First, the decision to be

applied nonretroactivily must

i establish a new principle of

law, either by overruling clear

past precedent on which litigants

may have relied .. . or by de-

ciding an issue of first impres-

sion whose resolution was not

Clearly foreshadowed ..

Secondly, it has been stressed

that ‘we must .. . weigh the

merits and demerits in each case

by looking to the prior history

of the rule in question, its pur-

| pose and effect, and whether re-

trospective operation will further

Or retard its operation’ ...

Finally, we have weighed the in-

equity imposed by retroactive

lee hand eet i tha og ee aD

6

application, for ‘where a

decision of this Court could

produce substantial inequitable

results if applied retroactively,

there is ample basis in our cases

for avoiding the ‘injustice or

hardship' by a holding of non-

retroactivity." at 106-107

(cites omitted).

As in Chevron, equity demands the

nonretroactive application of DelCostello

vs. International Brotherhood of Teamsters,

462 U.S. _,103 S.Ct. 2281 (1983) Here, the

original complaint was filed in May 1975. Then

the Circuit Courts of Appeal of this nation

had unanimously ruled that in 301-DFR

sebte’. the applicable statutes of limit-

ations were lengthy contract and tort

1

The phrase "301-DFR" refers to a breach

of contract suit brought under Section 301

of the Act against an employer joined with

a suit against a union for unfair repre-

sentation.

statutes. Thus, Petitioners justifiably

relied upon the law as it was at that

time. United Parcel Service vs. Mitchell,

457 U.S. 56, 101 S.Ct. 1559 (1981), which

drastically shortened the applicable

statute of limitations was not decided

until 1981, six years after the instant

action was filed.

DelCostello was decided shortly after

Mitchell and overruled Mitchell by ap-

plying the six month statute of limit-

ations period cf Section 10(b) of N.L.

R.A. [29 U.S.C. Section 160(b)].

Like the plaintiff in Chevron,

Petitioners did the utmost possible to

protect their rights.

lor a perspective of the decisional law

as of the time Petitioners filed their

complaint, see 44 George Washington Law

Review, 418,424 n. 40-42 (1976).

"We should not indulge in

the fiction that the law now

announced has always been the

law and therefore, that those

who did not avail themselves

of it waived their rights."

Chevron at i07.

In the instant case, the Sixth Circuit

summarily dismissed the complaint by

retroactively applying Mitchell and

DelCostello. There was no discussion

as to the appropriatness of the retro-

active application of DelCostello. (See

Appendix A), contrary to Chevron, which

requires a case by case determination

applying the three controlling factors.

The decision below is also in conflict

with other Sixth Circuit decisions rendered

on this issue. Pitts vs. Frito Lay,

700 F 330 (6th Cir. 1983), held that

2d

Badon vs. General Motors Corp., 679 Pog

(6th Cir. 1982), which applied the limit-

ations period of Section 10(b), should be

given prospective effect only.

|

w

:

é

;

In LaBond vs. McLean Trucking Co.,

Case No. 82-1576 (6th Cir. August 15,

1983), (See Appendix E), the Sixth Circuit,

relying upon its decision in Pitts held

that the DelCostello rule should not be

applied retroactively.

DelCostello overruled clear past

precedent. As the Court of Appeals for

the Ninth Circuit observed in McNaughton

vs. Dillingham Corp., 99 LC 10,688 (9th

Cir. 1984):

"ss aw Co HM Aw GREECE G0 State

that plaintiffs should have an-

ticipated that the Supreme Court

would borrow a federal statute

of limitations. Even the Supreme

Court in DelCostello notes that

such a procedure 1s unusual."

76 L.Ed. 4 at 485,495 at 20,332.

When Petitioners filed their action,

all cf the Circuit Courts were applying

lengthy statute of limitations periods

10

ee ee ee eS

based upon state law’. No case law, at

that time, discussed the application of

a short statute of limitations period

borrowed from federal law.

The second factor of Chevron is whether

retroactive application will further or

retard the operation of the new rule. The

purpose of the DelCostello rule is the

rapid resolution of labor disputes. Pro-

spective application of this rule will

fulfill its purpose by requiring plaintiffs

generally to bring their 301 suits within

a short period of time after conclusion of

their grievance process. Retroactive ap-

plication of DelCostello will deprive

plaintiffs of any judicial renedy, based

although there was confusion in the Circuit

Courts at the time, the confusion centered

around which state law was most analogous,

i.e. tort or contract limitation periods.

The Circuits, however, were in accord in

applying state statute of limitation periods

exceeding two years and not applying statutes

of only a few months duration.

1l

upon an unforeseeable, superceding and

brand new doctrine.? Denying plaintiffs,

who have been diligent, of "their day

in Court" was not one of the purposes

of the DelCostello rule.

Retroactive application of DelCostello

will produce substantial inequitable results.

The instant case had been pending for ap-

proximately six years before the statute

of limitations defense was even raised.

Petitioners expended a tremendous amount

of time, energy and money. It would be

grossly unfair to hold that Petitioners:

", . . Slept on his rights

at a time when he could not

have known the time limit-

ations that the law imposed

upon him." Chevron, supra at 108.

Thus, each of the Chevron factors

weighs heavily in Petitioners' favor.

In addition, dismissal of this case will

retard the salutatory basic purpose of

the law favoring 301-DFR suits where there

has been a gross injustice, as was the

case herein.

12

—= —s-

II. A Writ Of Certiorari Is Necessary

To Resolve The Conflicts That

Of DelCostello.

The Third Circuit in Perez vs. Dana

Corp., 718 Pog 981 (3rd Cir. 1983), the

Fifth Circuit in Edwards vs. Sea-Land

Service, Inc., 720 F eo? (Sth Cir.

2d

1983) the Eleventh Circuit in Rogers vs.

Lockhead-Georgia Co., 720 F 1247 (llth

2d

Cir. 1983) and the Eigth Circuit in

Lincoln vs. District 9, I.A.M., 99 LC

10,665 (8th Cir. 1983), all have approved

retroactive application of DelCostello.

The Sixth Circuit in the instant case

and in Curtis vs. Teamsters, Local 299,

has issued conflicting decisions. See

LaBond vs. McClean Trucking Co., Case

No. 82-1576 (6th Cir. 1983) and Pitts

vs. Frito Lay, Inc., 700 Fog 330 (6th

Cir. 1983).

liié F, 360 (6th Cir. 1983).

13

The Ninth Circuit in Edwards vs.

Teamsters Local Union 36, 719 Fog 1036

(9th Cir. 1983) and more recently in

McNaughton vs. Dillingham Corp., 99 LC

10,688 (9th Cir. 1984) and Reyes Barina

vs. Gulf Trading & Transporation Co.,

100 LC 10,821 (9th Cir. 1984), has

refused to apply DelCostello retroactively

based upon the Chevron analysis.

Also, using the test articulated in

Chevron, a number of Courts have refused

to give the earlier Mitchell decision

retroactive application: Kennard vs.

United States Postal Service, Inc., 53l

F.Supp. 1139 (E.D. of Mich. 1982);

Engelsburg vs. Transcon Lines, 530 F.Supp.

628 (W.D. of Wash. 1982); Tally vs. U.S.

Postal Service, 532 F.Supp. 786 (D. of Minn.

1982); Singer vs. Flying Tiger Line, Inc.,

652 Fo4 1349 (9th Cir. 1981) and McFarland

vs. International Brotherhood of Teamsters,

535 F.Supp. 970 (N.D. of Texas 1982).

14

sn?

7 7

a=

bo ©

—ai ease |

This Court, in DelCostello, did not

address the retroactivity issue. The

Circuit Courts are divided amongst them-

selves and within themselves on this

issue, resulting in confusion and in-

consistent decisions, and for this

reason alone, the writ should be granted.

15

CONCLUSION

The Court below disregarded the rule

of Chevron Oil vs. Huson, causing an

inequitable dismissal of the claim on

the eve of trial, after seven long years

of expensive litigation.

Each of the Chevron factors favor

Petitioners. DelCostello established a

new unpredicted rule of law. Prospective

only application of DelCostello wiil

further the purposes of the rule.

Petitioners justifiably relied upon a

lengthy statute of limitations. It would

be unconscionable to destroy their

reasonable expectations. Retroactive

application would deny Petitioners their

"day in Court" and produce a gross in-

Justice.

The decisions of the Courts of Appeals

vary. Conflicting decisions are issuing

from within the Sixth Circuit. Therefore,

review on certiorari is necessary.

16

sneiAest a

whe rien Laat

SG eM A ad OS eer, 68 Ur, ee ee Eo ie * 2 tie ee Sheol SQ er rete abot me

)

i

‘

i

For the foregoing reasons, Petitioners

pray that a writ of certiorari issue

directed to the United States Court of

Appeals for the Sixth Circuit in this

case to the end that the order of that

Court and the order of the United States

District Court, for the Southern District

of Ohio, Western Division, may be reviewed

by this Court and reversed and remanded

with direction that the motion for summary

judgment be denied and that the matter

proceed to trial.

—_

\

Susan J. Hauck

2918 Victoria Ave.

Cincinnati 45208

Of Counsel

Respectfully submitted,

res -

ee

Paul H. Tobias

TOBIAS & KRAUS

911 Clopay Building

105 East Fourth Street

Cincinnati, Ohio 45202

(513) 241-8137

Attorney for Petitioners

17

AFFIDAVIT OF SERVICE

STATE OF OHIO )

HAMILTON COUNTY )

I, PAUL H. TOBIAS, after first

being duly sworn according to law,

do hereby certify that three (3)

copies of the foregoing Petition

have been deposited in a United

States mailbox with first class

postage prepaid on this |

day of April, 1984 and sent to

Robert J. Hollingsworth, counsel

for Respondent, Cors, Bassett,

Kohlhepp, Halloran & Moran, 1700

Carew Tower, Cincinnati, Ohio

45202; and Mark Alan Greenberger,

counsel for Respondents, Local 100,

Freiberg, Katz & Greenberger, Suite

1400, 105 East Fourth Street,

Cincinnati, Ohio 45202, with three

(3) copies of this Petition for each

of the aforementioned counsel.

Pm

pom Of

-

me NN

PAUL a TOBIAS

Attorney for

Petitioners

SWORN TO AND SUBSCRIBED in my

presence on this olnol day of April,

1984. bx

fet

Jasis Public

asasVord MAUS

APPENDIX

Pe FR Ve RL PERSE By PAL ow

Nos. 82-3188 & 82-3392

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM HARKINS, et al.

Plaintiffs-Appellants

vs.

INTERSTATE MOTOR FREIGHT

)

)

)

)

)

)

)

SYSTEM, INC., et al. )

)

)

Defendants~-Appellees

Before: EDWARDS and ENGEL, Circuit Judges,

and NEESE,* Senior District Judge.

On receipt and consideration of letter

briefs in the above-styled case submitted

by all parties on the effect, if any, of

the decision of the Supreme Court of the

United States in DelCostello v. Int'l

Brotherhood of Teamsters, 51 U.S.L.W.

4693 (U.S. June 8, 1983), U.S.

(1983), this court concludes that the

* Honorable C.G. Neese, Senior District

Judge for the United States District Court

for the Eastern District of Tennessee,

Sitting by designation.

A-1

Peer eT a oe ee ee er TF

"Pees

DelCostello case does not affect the

validity of this court's June 13, 1983,

order dismissing the Harkins, et al.

appeal. Hence, the June 14, 1983, order

vacating the June 13, 1983, order was

improvidently issued.

We therefore vacate said June 14, 1983,

order and hereby reinstate this court's

order of June 13, 1983, in said appeal.

Entered by order of the Court

Clerk

APPENDIX B

82-3188

82-3392

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM HARKINS, et al. )

)

Plaintiffs-Appellants)

Vv. ) ORDER

INTERSTATE MOTOR FREIGHT)

SYSTEM, INC., et al. )

)

Defendants-Appellees )

Before: EDWARDS, Chief Circuit Judge,

ENGEL, Circuit Judge and NEESE,* Senior

District Judge.

This is an appeal from summary judg-

ment entered against certain teamster

union members who had brought § 301

*

Honorable C.G. Neese, Senior District

Judge, United States District Court for

the Eastern District of Tennessee, sitting

by designation.

actions, claiming breach of duty of fair

representation by Teamsters Local 100.

The summary judgment entered by Judge

David Porter, U.S. District Court for

the Southern District of Ohio, followed

the United States Supreme Court's

decision in United Parcel Service, Inc.

v. Mitchell, 451 U.S. 56 (1981). In

that case, the Supreme Court held that

the statute of limitations most ap-

propriate to actions for breach of fair

representation was the state statute

governing motions to vacate an arbitration

award. It is conceded that the applicable

Ohio statute of limitations is Ohio Rev.

Code Ann. §2711.13 (pages 1981) which

provides: "Notice of a motion to vacate,

modify, or correct an award must be served

upon the adverse party or his attorney

within three months after the award is

delivered to the parties in interest....

B-2

See ee eed .

In this appeal, appellants contend

that this much delayed litigation should

be exempted from the time bar of the

Mitchell decision either because Mitchell

should not be considered retroactive under

the facts of this case or because the

statute should be tolled on equitable

grounds.

Our review of the record does not

disclose equitable grounds for the tolling

of the statute. We find no representation

or inducement to delay on the part of

defendant and note considerable delay in

the processing of this case which was

chargeable to the plaintiffs. Further,

this Circuit has held that retroactive

application of the United States Supreme

Court's decision in Mitchell is appropriate.

Lawson v. Truck Drivers, Chauffeurs &

Helpers, Local Union 100, 698 F.2d 250

(6th Cir. 1983); Badon v. General Motors

B- 3

i Grr Ee ee eee ar | ~

= ae

ee kee OL eS See en See NOM Wet Se

ODE Nie

:

i

j

)

i

:

|

.

Corp., 679 F.2d 93, 97 (6th Cir. 1982).

For these reasons and for those set

forth in the opinion of the District

Court previously cited, the judgment

of the District Court is affirmed.

ENTERED BY ORDER OF THE COURT

Clerk

)

:

3

a

|

;

;

:

1/29/82 Filed 2/8/82

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WILLIAM HARKINS, et al. Case No.

C-1-75-155

Plaintiffs,

Vv. ORDER

INTERSTATE MOTOR FREIGHT

)

)

)

)

)

)

)

INC., et al., )

)

)

Defendants,

PORTER, S.J.:

This action pursuant to 29 U.S.C. §185

(N.L.R.A. §301) for alleged breach of

collective bargaining agreement and breach

of the duty of fair representation, is

presently before the Court on Defendants'

motions to dismiss the action as barred

by the statute of limitations (docs. 168,

171). These motions are the subject of

C-1

Py ws enbte! tentete os ah agin ania NaleatialdenaaeY

supporting, opposing and reply memoranda

(docs. 168, 170, 171, 174, 175). They

were also the subject of a hearing, on

Oral arguments, held on September 28,

1981.

Although these motions are labelled

motions to dismiss, the Court has treated

as motions for summary judgment, examining

the documents and exhibits of record that

are relevant to this motion. Plaintiffs

were aware of the depositions, exhibits

and affidavits relied upon by the defendants

in their motions, and were given every

reasonable opportunity to present materials

to the contrary. Nevertheless, plaintiffs

have disputed none of the material facts

set forth in the documents presented by

the defendants.

For the reasons set forth in an opinion

filed concurrently herewith, the Clerk is

hereby instructed to enter judgment in

C-2

favor of defendants and against plaintiffs

on all claims.

So Ordered.

United States Senior District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISON

WILLIAM HARKINS, et al., CASE NO.C-1-75-155

Plaintiffs,

INTERSTATE MOTOR FREIGHT

)

)

)

)

Vv. ) OPINION

)

)

teccs SO Eka )

)

)

Defendants.

PORTER, S.J.:

This is an action pursuant to 29 U.S.C.

§185 (NLRA §301) for alleged breaches of

a collective bargaining agreement by

defendant Interstate Motor Freight System,

Inc. (Interstate) and breach of the duty

of fair representation by defendant Teamsters

Local 100. Plaintiffs bring this action

on behalf of themselves and other present

or former road drivers of Interstate in

Cincinnati who were laid off by Interstate

in 1973-1974. Plaintiffs allege that

Interstate, following its acquisition of

C-4

the Great Lakes Express (GLC) southern

operating rights on October 13, 1973,

breached the National Master Freight

Agreement (NMFA) 'y cancelling the GLX

work rules and by refusing to dovetail

the seniority of all Interstate road

drivers in the Central States area.

Certain of the individual plaintiffs,

assert that Interstate also breached

the contract by refusing to allow them

to transfer to other terminals, in the

Central State Area, on the basis of their

seniority. Plaintiffs further allege

that Locai 100 unfairly represented them

in connection with their grievances over

Interstate's alleged contract violations.

This matter is presently before the

Court on defendants' motions to dismiss

the action as barred by the statute of

limitations (docs. 168, i70, 171, 174,

175). They were also the subject of a

C-5S

hearing, on oral arguments, held on

September 28, 1981. |

As motions to dismiss, defendants’

motions are too late because they were

filed after defendants' answers. Fed.

R. Civ. P. 12(b). Nevertheless,

defendants' motions could be raised by

a motion for judgment on the pleadings

pursuant to Fed. R. Civ. P. 12(c); and,

because they present matters outside the

pleadings, they shall be treated as motions

for summary judgment. See Fed. R. Civ. P.

12 (c), 56. Plaintiffs were aware of the

depositions, exhibits and affidavits

presented by the defendants, and had every

reasonable opportunity to present contrary

evidence. They have disputed none of these,

apparently assuming that if United Parcel

Service, Inc. v. Mitchell, 451 U.S. 56

(1981) applies their claims would be barred.

The Court has examined all of the depositions,

C-6

affidavits and exhibits of record that

appear to be relevant to this motion,

and has determined that there is no

genuine issue as to any fact set forth

herein.

For statute of limitations purposes,

this action must be viewed as one to

vacta a number of arbitration-like

decisions of union-employer joint grievance

panels. United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56 (1981). In Mitchell,

the Supreme Court held that the statute

of limitations most appropriate to actions

such as the one at bar is the state statute

governing motions to vacate an arbitration

award. 451 U.A. at ___, 67 L.Ed. 2d 732,740.

Ohio Revised Code §2711.13, provides that

"notice of a motion to vacate, modify or

correct an award must be served upon the

adverse party or his attorney within three

months after the award is delivered to the

parties in interest...

Because the issues in this case were

first raised individually in a number of

separate grievances, whiah were decided

at different times, we must consider each

issue separately. We shall consider them

in the order in which they are set forth

in this Court's Opinion of April 14, 1978

regarding class certification (doc. 85).

The first issue set forth in the Court's

Opinion on class certification was the

issue of right to transfer. Although this

issue was not certified for class treatment,

the parties now appear to agree that the

individual named plaintiffs are among those

with standing to raise this issue. See

document 169. Accordingly, we must con-

sider whether the individual plaintiffs

are barred from asserting this claim by

the statute of limitations. It is dis-

puted that the question of whether laid-off

Cincinnati drivers had a right to transfer

to other Interstate terminals ahead of new

hires was first raised in the Dimmick and

C-8

A minal tl

and Beasley grievances. These grievances

were heard by the Ohio Joint State Committee

as Case No. R-1153-4, and were denied on

July 17, 1974. See Young deposition ex-

hibits 41-43. The Dimmick and Beasley

grievances, including the issue of right

to transfer, were one subject of plaintiffs'

initial complaint. Because that complaint

was not filed until May 1, 1975 -- more than

nine months after the grievance decision --

the right to transfer issue is barred by

the statute of limitations.

The second issue set forth in the Court's

class certification opinion is the dispute

over work rules.

Briefly stated this issue

concerns the applicability of

the work rules (primarily

method of dispatch rules)

previously negotiated between

the union and Great Lakes

Express to the defendant

Interstate following Interstate's

temporary acquisition of Great

Lakes' southern operating rights

in the Central States Area...

C-9

Under the Great Lakes method

; of dispatch, drivers stationed

north of Cincinnati would have

to use Cincinnati drivers on

runs south of Cincinnati.

Dee apt

(doc. 85 at 12). Plaintiffs allege that

defendant Interstate in violation of the

NMFA

unilaterally abrogated and can-

celled the work rules and practices

which had been negotiated between

the union and Great Lakes, and re-

fused to recognize the continuing

validity of, or to abide by any of,

the collective bargaining agree-

ments between the union and Great

Lakes .. . [including] the Januarv

24, 1972 decision of the Joint

Conference Change of Operations

Committee which had assigned to

the Great Lakes over-the-road

drivers domiciled in Cincinnati

the runs to destinations south

OF CimGannaeti « « «

(doc. 77, ¥Y 16(a)(b)). Plaintiffs specifically

challenged defendant Interstate's practice

of dispatching freight from its northern

terminals to points south of Cincinnati with-

out the use of Cincinnati drivers (doc. 85

at 12). This practice is commonly referred

to as running overhead of Cincinnati.

C-10

Interstate's practice of running overhead

of Cincinnati was the subject of a number of

grievances -- including that of plaintiff

Harkins and that of plaintiff Stamey --

that were heard by the Ohio Joint State

Committee in consolidated hearings on cases

numbered R-97-4 and R-203-4 through R-211-4.

These grievances were denied on January 9,

1974, over 15 months before this action was

commenced. See Young deposition exhibits

26-34. Accordingly, plaintiffs' challenge

to the practice of running overhead of

Cincinnati is barred by the statute of

1/

limitations .=—

1/ New dispatch rules have been established

as the result of a grievance proceeding

ordered by this Court in a related action.

Interstate Motor Freight System v. Truck

Drivers Local 100, Case No. C-1-74-117

(doc. 12, April 18, 1974). Although

plaintiffs' prayer for relief requests

reinstatement of the Great Lakes work rules,

it does so only "unless changed through

collective bargaining and in accordance

with the requirements of the national and

supplemental agreements ..." (doc. 77 at 9).

Ceili

ss nina! ita en,

Nowhere in plaintiffs' supplemental and

amended complaint is any challenge made to

the validity of the grievance proceedings

in which the new work rules were established.

Moreover, those proceedings culminated on

June 20, 1974 in the decision of a subcom-

mittee of the Central States Joint Area

Committee. See Young deposition, exhibit 22.

A challenge to that decision would have been

barred on the date the original complaint

was filed.

As set forth in the Court's class

certification opinion, the third issue

involved in this case is

plaintiffs' claim that defendant

Interstate violated the provisions

of the NMFA and its supplemental

agreements by not dovetailing the

seniority lists of all Interstate

road drivers in the Central States

Area following the October 14, 1973

takeover of Great Lakes" operating

rights and that this alleged viola-

tion 'denied the seniority rights

to which [plaintiffs] are entitled'

and resulted in ‘substantial loss

of earnings as well as vacation,

pension, insurance and other benefits

and rights' under the contracts

(plaintiffs' amended and supplemental

complaint, ¥{ 13,14, 16(C) 28, (2),

(4) ).

(doc. 85 at 18 (footnote omitted)).

Cia

The issue of seniority dovetailing was

involved in an application submitted to the

Ohio State Joint Committee by Great Lakes

Express and defendant Interstate for ap-

proval of the dovetailing of former Great

Lakes employees into the Interstate System

Cincinnati seniority list. See Young Depo-

Sition, exhibits 37-40. This application

was “approved as implemented." Id. Never-

theless, it does not appear from the record

presently before the Court whether the

precise issue of systemwide dovetailing was

raised in the hearing of that application.

If it was, then a challenge to that decision

of the Ohio State Joint Committee would be

barred by the statute of limitations. It

appears, however, that the issue of dove-

tailing into a master seniority list was

not raised in any grievance proceeding

until that of plaintiff Calhoun which was

assigned Case No. R-572-5H before the Ohio

C-13

NE ORE I a RN SUN SOREN PTS EAE IEE ITS BEI IE IT AE RISE

Joint State Committee. This grievance

together with a number of other grievances

was ultimately decided by the Central States

Joint Area Committee as Case No. 592, and

was denied on December 16, 1976. Young

Affidavit, 60 and Exhibit 13.2/

Because the Calhoun grievance raising

the issue of systemwide dovetailing was

decided after the initial complaint and

the amended complaint (docs. 1 and 3)

were filed, it is necessary to determine

whether the allegations regarding this

grievance relate back to the commencement

of this action. In the circumstances of

this case, this is a difficult issue.

2/ This grievance was denied "as previously

heard and denied" although it does not

appear in the record that this grievance

had previously been decided.

c-14

EP TS sail eta tea ein tain Cohen dh nme eed ok ot eli aa aa

First of all, it is clear from defendant

Interstate's reply memorandum that defendants

were aware that plaintiffs intended to press

a claim for unfair representation in the

grievances decided December 16, 1976 even

before the hearing and decision of the Joint

Area Committee had occurred. It is also

clear that defendants objected at all times

to inclusion of that issue in this lawsuit

without an appropriate amendment of the

plaintiff's complaint (doc. 174 at 7-97).

Furthermore, the Court disagrees with

defendants' argument that supplemental

pleadings can never relate back to the date

of the initial complaint. See 6 C. Wright

& A. Miller, § 1496 at 484-85 and cases

cited there; 3 Moore's Federal Practice,

q 15.16([2]. Nevertheless, neither an

amendment nor a supplement to a complaint

that raises an entirely different trans-

action will relate back. Pursuant to

C-iS

Fed. R. Civ. P. 15(C), the Court must

determine whether there is a common core

of operative facts in plaintiffs' original

complaint and their amended and supplemental

complaint. See 6 C. Wright & A. Miller,

§ 1497.

Plaintiffs assert, with complete cor-

rectness, that both versions of their

complaint assert the same breach of contract

by defendant Interstate and the continuation

of an alleged pattern of unfair representa-

tion by the defendant union. Defendants

assert, with equal correctness, that the

supplemental complaint is the first time

that the particular grievance proceeding

in issue was challenged by the plaintiffs.

Defendants have the better of this argument.

Mitchell counsels that this action is to

be viewed primarily as one seeking to vacate

the decision of the joint Union-Employer

grievance panel. Accordingly, we hold that

C-16

each challenged grievance decision con-

Stitutes a separate transaction or occur-

rence, and each alleged breach of the duty

of fair representation by the union con-

stitutes separate conduct, for the purposes

of applying Rule 15(C). Cf. Blough v. Lamb,

191 F.Supp. 906 (S.D. N.Y., 1961) (claims

requiring “proof of independent operative

facts . . . and constitut[ing] a separate

claim" do not relate back). Accordingly,

because the challenged grievance decision

occurred more than three months prior to

plaintiffs' motion for leave to amend their

complaint, (doc. 63), filed September 8,

1977), plaintiffs' seniority-dovetailing

claim is barred by the statute of limita-

tions. See Id. (applying date of notice

of motion to supplement complaint).

Applying the criteria of Chevron Oil

Co. v. Huson, 404 U.S. 97 (1971), the Court

rejects plaintiffs' argument that the Mitchell

C-17

holding is not to be applied retroactively .2’

3/ Mitchell has been applied retroactively in

the following cases: Sear v. Cadillac Auto

Company, 654 F. 2d 4 (lst Cir. 1981)

(dictum) Davidson v. Roadway Express, Inc.,

650 F.2d 902 (7th Cir. 1981) DelCostello

v. Teamsters, 524 F. Supp. 721 (D. Md.

1981); Kikos v. Teamsters, 108 L.R.R.M.

2787 (E.D. Mich. 1981) (action commenced

before decision of Smart v. Ellis Trucking

Co., 580 F. 2d 215 (6th Cir. 1978); Wright

v. Monmouth College, 108 L.R.R.M. 2521 (D.

N.J. 1981); Baker v. R.H. Macy & Co., 519

F.Supp. 657 (E.D.N.Y. 1981); Scott v.

Chrysler Corp., 107 L.R.R.M. 3086 (E.D.

Mich. 1981). The only cases this Court

has found that have declined to apply

Mitchell retroactively are Singer v. Flying

Tiger Line, Inc., 653 F.2d 1349 (9th Cir.

1981) (issue not raised at trial), which

was cited by the plaintiff, and Canard v.

United Parcel Service, Civil Action No.

81-70156 (E.D. Mich., 1981) (action com-

menced after decision of Smart v. Ellis

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

1978).

c-18

At the time each of plaintiffs' complaints

was filed, there was no clear past precedent

indication ghat a contract statue of limit-

ations would apply to labor cases involving

4/

arbitrations .—

4/ Plaintiffs claim to have relied upon a

number of cases that applied a long

statute of limitations to Section 301

Suits. Plaintiffs acknowldege, however,

that most of these cases involve either

no arbitration or no statute of limita-

tions defense. Such cases are clearly

inapposite. The only cases cited by the

plaintiffs that did involve both an ar-

bitration and a statute of limitations

defense are Smart v. Ellis Trucking Co.,

580 F.2d 215 (6th Cir. 1978); Lehto v.

Underground Construction Co., 69 Cal.

App. 3d 933, 138 Cal. Rptr. 419, 82 Lab.

Cas. 410,128 (May 20, 1977); Butler v.

Teamsters Local 832, 514 F.2d 442 (8th

Cir. 1975), cert. denied, 423 U.S. 924

(March 18, 1975). Of these, two were

not even decided when plaintiffs filed

their amended and supplemental complaint,

and the other which was decided nine

months to fourteen months after the

arbitrations that plaintiffs sought to

vacate in their original complaint, did

not consider an arbitration statute of

limitations. Hill v. Aro Corp., 275 F.

Supp. 482, 487 (N.D. Ohio 1967), on the

other hand, had decided precisely that

the three month limitations period of

O.R.C. § 2711.13 or the similar provision

of 9 U.S.C. § 12 would be applied in a

Section 301 action involving an arbitra-

tion.

C-19

a eT

Indeed, in Hill v. Aro Corp. 275 F.Supp.

482, 487 (N.D. Ohio 1967) the United States

District Court for the Northern District

of Ohio had held that the three month

limitation of 0.R.C. § 2711.13 or 9 U.S.C.

§ 12 would apply to a case such as the one

at bar. Furthermore, retroactige application

of Mitchell will further the federal labor

law policies of “relatively rapid disposition

of labor disputes" and of giving finality to

arbitration awards upon which the Mitchell

decision was based. Prospective application

would hinder that policy. Although this

case has already proceeded through a lengthy

pretrial phase, we believe that any pre-

judice that may result from dismissing this

action at this point in time is outweighed

by the advancement of federal labor policy,

especially in light of the fact that the

Mitchell decision was foreshadowed by the

Hill case at the time plaintiffs' arbitra-

tions were decided. The fact that plaintiffs

C-20

will be barred from litigating their sub-

stantive claims is not dispositive. The

Supreme Court itself applied its holding

retroactively in Mitchell.

Since the 'Supreme Court is well

aware of how to avoid the effects

of applying one of its ruling re-

troactively,' Cates v. Trans World

Airlines, Inc., 561 F.2d 1064, 1073

(24nd Cir. 1977), . . . the declina-

tion to do so in Mitchell, ...

suggests that the Supreme Court

intended its decision to be applied

retroactively in most circumstances.

Kikos v. Teamsters, 106 L.R.R.M. 2787,

2791 (E.D. Mich. 1981) (citations omitted).

Although Mitchell involved the employer

by the time it reached the Supreme Court

we hold that the same statute of limitations

3/

is applicable to the union as well.=

_

5/ Accord: Sear v. Cadillac Auto Co., 654

F.2d 4 (lst Cir. 1981) (dictum);

Delcostello v. Teamsters, 524 F.Supp.

721 (D. Md. 1981); Kikos v. Teamsters,

108 L.R.R.M. 2787 (E.D. Mich. 1981);

Scott v. Chrysler Corp., 107 L.R.R.M.

3086 (E.D. Mich. 1981) But see Baker

v. R.H. Macy & Co., 519 F.Supp. 657

(E.D. N.¥. L981).

C-21

Ordinarily, the same statute of limitations

should apply to both the employer and to

the union in a section 301 action. Gallagher

v. Chrysler Corp., 613 F.2d 167 (6th Cir.

1980) (Court refused to apply six year

statute to employer when only a three year

statute applied against the union). Ap-

plication of a single statute of limitations

in this case is also supported by the fact

that damages against the union would be

limited to attorneys fees, court costs,

travel expenses and other costs incidental

to plaintiffs' attempts to recover. Lost

wages, lost benefits and punitive damages

are not recoverable against a union in an

unfair representation action pursuant to

Section 301. Milstead v. Teamsters Local

957, 649 F.2d 395 (6th Cir.),cert. denied,

108 LLRM 2656 (U.S. 1981). It would be

contrary to sound judicial policy to en-

courage actions to recover only the costs

C22

of litigation where no underlying right can

any longer be vindicated in the action.

See also Mitchell v. United Parcel Service,

451 U.S. 56 (1981) (Stevens, J. concurring

and dissenting in part).

The Court has also considered and rejected

plaintiffs' argument that the procedural

requirements of O.R.C. §2711.08 must be met

before §2711.13 may be applied to an arbitra-

tion. In Mitchell itself, the Supreme Court

rejected an argument based upon procedural

requirements of New York's arbitration

statute that would have prevented the em-

ployees from bringing a direct suit to

vacate the arbitration award under that

statute. The Court ruled that the "fact

that an employee could not bring a direct

suit to vacate an arbitration award, does

not mean that his Section 301 claim, which

if successful would have the same effect

is not ‘closely analogous‘ to such an action."

C-23

67 L.Ed. 2d 732,739 n.3. "Obviously the

Court intended to borrow the limitations

period of the arbitration statute, even

if the procedural elements of the arbitra-

tion act do not apply to the grievance

machinery of a collective bargaining

agreement." Brain v. Roadway Express, Inc.,

Case No. C-80-2338 (N.D. Ohio December 3,

1981). Our jurisdiction is founded not on

the arbitration statute, but on Section 301.

29 U.S.C. § 185.

Although defendant's motions are

characterized as motions to dismiss,

defendants have submitted and the Court has

condidered depositions, affidavits and

exhibits already of record in this case.

Plaintiffs have not disputed the dates of

the various arbitrations set forth in those

documents. There is no dispute as to any

Material fact involved in this motion.

C-24

Accordingly, judgment is to be entered in

favor of defendants on all claims.

United States Senior District Judge

C-25

3/8/82

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DOIVISION

WILLIAM HARKINS, et al., Case No.C-1-75-155

)

)

Plaintiffs )

)

Vv. ) MEMORANDUM

) AND

INTERSTATE MOTOR FREIGHT) ORDER

INC., @t al., )

)

Defendants )

PORTER, S.J.:

MEMORANDUM

This matter is presently before the

Court on plaintiffs' motion for recon-

sideration (doc. 180). This motion is

the subject of supporting and opposing

memoranda (docs. 190-81, 193).

The Court has considered the memoranda

submitted in connection with this motion

as to which the judgment of the Court has

been entered and the opinion and order upon

which that judgment was based. Upon

D-1

consideration of all of these, the Court

finds that plaintiffs' motion is not well

taken.

The Court's previous opinion expressly

considered plaintiffs' Rule 15(c) argument

and held that the heart of this action, for

statute of limitations purposes, is the

challenge to the individual grievance

decision. There can be no action for breach

of contract against defendant Interstate

Motor Freight Systems unless the relevant

grievance decision is first overruled. United

Parcel Service v. Mitchell, 451 U.S. 56,

61-62 (1981); See Vaca v. Sipes, 386 U.S.

171, 184-86 (1967). The grievance decision

of December 16, 1976 became unassailable on

March 16, 1977. It was made a subject of

this action no sooner than September 8,

1977. Accordingly, plaintiffs' action as

to contract claims that were first raised

in that grievance is barred.

D=2

As stated in our former opinion, and

above, we do not agree with the plaintiffs

that notice of one breach of contract that

is subject of one grievance is notice of

even a related breach that is the subject

of yet another grievance. Accordingly,

we reject plaintiffs' tolling argument.

Finally, our holding that United Parcel

Service v. Mitchell, 451 U.S. 56 (1981)

should be applied retroactively was based

not only upon lack of reliance by the

plaintiffs upon former contrary authority,

but equally upon the other criteria of

Chevron Oil Co. v. Huson, 404 U.S. 97

(1971). Thus, even if plaintiffs could

have relied upon cases applying longer

statutes of limitation as to defendant

Union, plaintiffs' claim of unfair re-

presentation remains subject to the

ninety (90) day statute of limitations

and is barred, for the reasons set forth

in our prior opinion.

ORDER

For the foregoing reasons, plaintiffs'

motion for reconsideration is denied.

SO ORDERED.

United States District Judge

No. 82-1576

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GERALD A. LaBOND, ET AL.,

Plaintiffs-Appellants

McLEAN TRUCKING COMPANY

De fendant-Appellee

)

)

)

Vv. )

)

) ORDER

)

BEFORE: CONTIE and KRUPANSKY, Circuit

Judges; and REED*,District Judge

The defendant-appellee moves this Court

to reconsider its order reversing the

district court's order which had dismissed

plaintiffs' Sec.201 suit for being time-

barred by the six-month time period pro-

vided in Sec.10(b) of the National Labor

Relations Act. The defendant contends

that the Supreme Court has recently

mandated that the six-month time period

* The Honorable Scott Reed, District Judge,

U.S. District Court for the Eastern

District of Kentucky, sitting by designation.

E-1

shall be applicable to circumstances like

those involved in the instant case. Del

Costello v. International Brotherhood of

Teamsters, __U.S.__, 51 U.S.L.W. 4693

(June 8, 1983).

As the plaintiffs correctly point out

in their response to the defendant's motion

to reconsider, the Supreme Court did not

retroactive application; rather, the Suprenie

Court essentially rendered an opinion in

accord with this Court's decision in Badon

Cir. 1982). Absent a Supreme Court ruling

on the issue of retroactivity, it is clear

that this Court's decision in Pitts v.

application only is the controlling law in

the instant case.

The defendant's motion to reconsider

is, accordingly, denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WILLIAM HARKINS, et al.

Plaintiffs NO. C-1-75-155

-vs- (Judge Porter)

INTERSTATE MOTOR FREIGHT

SYSTEM, et al. AFFIDAVIT OF

HASKELL BAZELL

Defendants

Now comes Haskell Bazell, after being

duly cautioned and sworn, and for his af-

fidavit says as follows:

l. I was lead counsel for the Plaintiffs

in 1975 when suit was filed and when our

amended and supplemental complaint was filed.

2. At those times and during the time I

represented Plaintiffs it was my opinion that

the Statute of Limitations for 301 suits for

breach of contract against the employer was

in excess of two years.

P-1

3. I knew of no trend of cases or weight

of authority holding that suit against

Interstate would have to be filed within 90

days or within the period used for suits to

vacate an arbitration award.

4. I relied upon my belief that a con-

tract or tort statute of limitations applied

in determining when the deadline was for

filing claims of Plaintiffs against Interstate.

Haskell Bazell

Sworn to and subscribed in my presence

this 18 day of September, 1981.

Notary Public,

State of Ohio