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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 870

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2796%3A1. Public record. Not legal advice.