Appendix — Barnett v. United Air Lines, Inc.

—

Case No.

UNITED STATES SUPREME COURT

1984 TERM

FRANF E. BARNETT,

Petitioner,

Vv.

UNITED AIR LINES, INC. and

ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Tenth

Circuit

APPENDIX TO PETITION FOR CERTIORARI

HOBBS/BETHKE & ASSOCIATES

Larry F. Hobbs, P.C.*

William P. Bethke

Attorneys for Petitioner

5353 West Dartmouth Avenue, Suite 501

Denver, Colorado 80227-5564

(303) 989-5850

*Counsel of Record

TABLE OF CONTENTS

Page

45 Gs8.G» ieee ee 1

29 GebsCe § | EE 4

District Court Order

of Dismissal

(February 8, 1982).......... 7

Reporter's Transcript of

Ruling on Motion to Dismiss

(Pebruary 17, L982) <ccccccece 9

Opinion of the Court

of Appeals for the Tenth

Circuit (March 13, 1984)... 20

Opinion of the Court

of Appeals for the Tenth

Circuit (June 21, 1984)... 39

Order denying Petition

for Rehearing

(JULY 2B, LHS) cocevvevcose 60

45 U.S.C. § 184

System, group, or regional

boards of adjustment

The disputes between an employee or

group of employees and a carrier or

carriers by air growing out of

grievances, or out of the interpretation

or application of agreements concerning

rates of pay, rules, or working

conditions, including cases pending and

unadjusted on the date of approval of

this Act before the National Labor

Relations Board, shall be handled in the

usual manner up to and including the

chief operating officer of the carrier

designated to handle such disputes; but,

failing to reach an adjustment in this

manner, the disputes may be referred by

petition of the parties or by either

party to an appropriate adjustment

board, as hereinafter provided, with a

Full statement of the facts and

Supporting data bearing upon the

disputes.

It shall be the duty of every

carrier and of its employees, acting

through their representatives, selected

in accordance with the provisions of

this title to establish a board of

adjustment of jurisdiction not exceeding

the jurisdiction which may be lawfully

exercised by system, group or regional

boards of adjustment, under the

authority of seciton 3, Title I, or this

Act.

Such boards of adjustment may be

established by agreement between

employees and carriers either on any

individaul carrier, or system, or group

of carriers by air and any class or

classes of its or their employees; or

pending the establishment of a permanent

National Board of Adjustment as

hereinafter provided. Nothing in this

Act shall prevent said carriers by air,

or any class or classes of their

employees, both acting through their

representatives selected in accordance

with provisions of this title, from

mutually agreeing to the establishment

of a National Board of Adjustment of

temporary duration and of similar

limited jurisdiction.

29 U.S.C. § 160(b)

Complaint and notice of hearing --

Answer -- Court rules of

evidence inapplicable

Whenever it is charged that any

person has engaged or is engaging in any

such unfair labor practice, the Board,

Or any agent or agency designated by the

Board for such purposes, shail have

power to issue and cause to be served

upon such person a complaint stating the

charges in that respect, and containing

a notice of hearing before the Board or

a member thereof, or before a designated

agent or agency, at a place therein

fixed, not less than five days after the

serving of said complaint: Provided,

That no complaint shall issue based upon

any unfair labor practice occurring more

than six months prior to the filing of

the charge with the Board and the

service of a copy thereof upon the

person against whom such charge is made,

unless the person aggrieved thereby was

prevented from filing such charge by

reason of service in the armed forces,

in which event the six-month period

shall be computed from the day of his

discharge. Any such complaint may be

amended by the member, agent, or agency

conducting the hearing or the Board in

its discretion at any time prior to the

issuance of an order based thereon. The

person so complained of shall have the

right to file an answer to the original

or amended complaint and to appear in

person or otherwise and give testimony

at the place and time fixed in the

complaint. In the discretion of the

member, agent, or agency conducting the

hearing or the Board, any other person

may be allowed to intervene in the said

proceeding and to present testimony.

Any such proceeding shall, so far as

practicable, be conducted in accordance

with the rules of evidence applicable in

the district courts of the United States

under the rules of civil procedure for

the district courts of the United

States, adopted by the Supreme Court of

the United States pursuant to the Act of

June 19, 1934.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 80-2Z-1380

FRANK E. BARNETT,

Plaintiff,

Vv.

UNITED AIRLINES, INC., et al.,

Defendants.

Order of Dismissal

THIS MATTER is before the Court on

Motion to Dismiss filed by defendant

United Airlines, Inc., and a Motion for

Summary Judgment filed by defendant

Association of Flight Attendants. The

Court has heard the arguments of counsel

and had rendered oral conclusions of law

contained herein by reference as if

fully set forth. It is therefore

ORDERED that defendant United

Airlines, Inc., Motion to Dismiss is

granted and the action and complaint are

hereby dismissed without prejudice, each

party to pav his or its own costs, and

it is

FURTHER ORDERED that defendant

Association of Flight Attendants' Motion

for Summary Judgment is granted and the

action and complaint are dismissed

without prejudice, each party to pay his

or its own costs, and it is

FURTHER ORDERED that the oral

motion of plaintiff to dismiss Flight

Attendants and Flight Stewards in the

Service of United Airlines is granted

and the action and complaint are

dismissed without prejudice, each party

to pay his or its own costs.

DATED at Denver, Colorado this 8th

day of February, 1982.

BY THE COURT: /s/ Zita L. Weinshienk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. &0-Z-1380

FRANK E. BARNETT,

Plaintiff,

vs.

UNITED AIRLINES, INC., et al.,

Defendants.

REPORTER'S TRANSCRIPT

(Hearing on Motion to

Dismiss: Ruling)

THE COURT: What we have is a decision

on which statute of limitations applies;

and I think everyone has reached the

agreement that in this area, since this

is not a railway case, that the Federal

statute does not apply. Section 3 is

not applicable to air carriers, so we do

have to look to State law to see which

of the State statutes should apply, as

did the Supreme Court in United Parcel

v. Mitchell.

United Parcel v. Mitchell, although

under a different Federal statute, was a

very analogous situation. It involved

an arbitration hearing before an

administrative panel. It involved a

lawsuit then brought based on the

failure of the union to represent the

litigant at an arbitration and against

the original party, although when the

case came up to the Supreme Court, the

union was not before the court. But the

court very definitely in its decision,

in United Parcel, is discussing both

actions against the original party and

against the union for failure to

represent.

The Supreme Court indicates that

although the respondent in that case did

not style his suit as one to vacate the

10

award of the joint panel, if he's

successful the suit will have that

direct effect. The court goes on to

indicate that the respondent was

required -- that is, the respondent in

United Parcel -- was required in some

way to show that the union's duty to

represent him fairly at the arbitration

had been breached before he was entitled

to reach the merits of his contract case.

This makes the suit more analogous to an

action to vacate an arbitration award

than a straight contract action. The

Supreme Court -- the majority of the

court concludes with a policy decision.

"Given the choices present here and

the undesirability of the result of the

greivance and arbitral process being

suspended in limbo for long periods, we

think the District Court was correct

when it chose the 90-day period imposed

1l

by New York for the bringing of an

action to vacate an arbitration award."

There are two possible statutes of

limitation under State law. One is the

90-da, statute similar to the New York

Statute to vacate an arbitration award.

The other statute -- let me just give

the cite on that -- that is 13-22-214.

The other statute is 13-80-106,

entitled "Actions Under Federal

Statute."

Were this a Colorado action under a

Colorado arbitration, the policy would

be very, very clear, and that would be

you are required to bring your action to

vacate an arbitration award within 90

days under the State statute.

If this action were exactly as it

is framed against both the employer --

the original employer and against the

union for breaching a duty of fair

12

representation, I don't think there

would be any question but that the State

philosophy would be that one is required

to bring the action under 13-22-214,

even though it might involve a tort

action against the union. It is, as

discussed by the Supreme Court, so

wrapped up together with the fact that

what is really being sought is the

overturning of an arbitration award that

the plaintiff would be required to come

under that shorter State statute.

There is good public policy reasons

for this State statute. Everyone knows

that the courts are overcrowded. State

and Federal Courts are overcrowded.

Arbitration agreements are looked on

with great favor in recent law; and in

fact, parties are encouraged to

participate in aribtration. Those

arbitration decisions which are given,

13

by public policy also -- which is very

clear in this statute ~-- to be brought

to court promptly so that they can be

settled and settled promptly.

We have a situation here where we

don't have a State plaintiff. If we had

a State plaintiff, I think there would

be no question in this case. We have a

plaintiff who brings the action under

Federal jurisdiction, and I have no

problem with the Federal jurisdiction.

But the question is very strongly in my

mind, even though this is clearly a case

of Federal jurisdiction, whether that is

one and the same as an action upon a

liability created by a Federal statute.

This basically is an action under

contract, fair representation of the

union. It is an action which is implied

under the Federal law certainly, but is

this an action such as a 1982 or 1983

14

action where there is a liability

created by Federal statute? I have

serious questions whether it is.

We have, in other words, a general

Statute which talks about actions under

a liability created by Federal statute,

and it is very questionable in this

Court's mind whether this is that type

of action.

We have a very specific statute

which indicates that where a party seeks

to vacate an arbitration award, they

must file the action very quickly. The

question is which statute shall be

applied.

The Supreme Court seems to

indicate, not on precise facts but on

very close, very analogous facts, that

we apply the 90-day statute. In this

case, the policy, I think, is the same

policy as in the United Parcel v.

15

Mithcell case: That there is a public

policy reason for having grievance and

arbitration proceedings not be suspended

in limbo for long periods of time. That

public policy is relevant in this case

just as much as it was relevant in

United Parcel.

The court ruled that the statute

that applies in Colorado is the 90-day

statute, which requires one seeking to

vacate arbitration awards to file within

90 days. Therefore, both motions should

be granted.

I would also say by way of dictum

that I think there are strong questions

not in the malpractice area, where one

discovers medical malpractice, but in an

area where one is looking to the

question of what date does an action

accrue from an administrative awrad.

There are strong questions of whether

16

one looks at the date that something was

received by the party or actually the

date of the award itself. Certainly,

had there been knowledge of this award,

an action could have been brought

immediately after the September date

announcing the decision. In other

words, there could have been an appeal

on September 10.

If one looks at one of the

traditional definition of when an action

occures, it is when one can proceed,

when it is ripe enough to proceed with

the appellate process. That certainly

would argue that the earlier date would

be the date. I don't think it's

necessary for me to reach that decision.

Mr. Hobbs, if you are going to take

this up to the Tenth Circuit, which I

think would be perhaps helpful to

clarify the law, they may or may not get

17

to that issue; but in any case, this

Court feels that it is bound by the

spirit and the policy and the law in

United Parcel Service v. Mitchell and by

the policy of the State of Colorado.

The 90-day rule applies.

The motion to dismiss -- I think

there is one motion to dismiss and one

for summary judgment -- the motions are

gratned. Unless there is anything

further, the Court will be in recess.

(Thereupon, the hearing was

concluded and the court was in recess at

9:15 a.m.)

REPORTER'S CERTIFICATE

I, Paul A. Zuckerman, Certified

Shorthand Report and Official Reporter

to this Court, do hereby certify that I

was present at and reported in shorthand

the proceedings in the foregoing manner;

that I thereafter reduced my shorthand

18

notes to typewritten form, comprising

the foregoing official transcript;

further, that the foregoing official

transcript is a full and accurate record

of the proceedings described in the

matter on the date set forth.

Dated at Denver, Colorado, this

17th day of February, 1982.

/s/ Paul A. Zuckerman, CSR, RPR

19

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 82-1195

FRANK E. BARNETT,

Plaintiff-Appellant

v.

UNITED AIR LINES, INC., et al.,

Defendants-Appellees

Opinion filed March 13, 1984

After examining the briefs and the

appellate record, this three-judge panel

has determined unanimcusly that oral

argument would not be of material

assitance in the determination of this

appeal. See Fed. R. App. P. 34(a);

Tenth Circuit R. 10(e). The case is

therefore submitted without oral

argument.

Plaintiff Frank E. Barnett

(Barnett) appeals from an order of the

district court (1) granting

20

Defendant-Appellee United Airlines,

Inc.'s (United) motion to dismiss and

(2) granting Defendant-Appellee

Association of Flight Attendants (AFA)

motion for summary judgment, on the

grounds that Barnett's claims are barred

by a Colorado ninety-day statute of

limitations. United is an air carrier

subject to the provisions of the Railway

labor Act, 45 U.S.C. §$§ 151, et seg.

(1976)> AFA is a labor organization

representing flight attendants, such as

Barnett, employed by United. In his

amended complaint, Barnett alleges that

United breached his contractual right

under the Collective Bargaining

Agreement between United and AFA, and

1 As noted later in this opinion,

however, air carriers are expressly

excepted from the application of § 3, 45

U.S.C. § 153. See, §$§ 201 and 202, 45

U.S.C. §§ 181 (Supp. V 1981) and 182

(1976).

21

that AFA violated its duty to him of

fair representation. Barnett argues

that United improperly adjusted his

seniority statuts in violation of the

Collective Bargaining Agreement.

Further, he claims that AFA

"demonstrated bad faith and acted

arbitrarily and capriciously by failing

to process [his] grievance, by failing

to furnish proper representation to

[him] at the arbitration hearing, and by

failing to advise the arbitrator of

their own practice of interpreting the

collective bargaining agreement to

afford seniority credit for time served

in temporary inflight service

Supervision status." Rese VOLi~s f

(Amended Complaint) at 12.

The Collective Bargaining Agreement

between United and AFA controls pay

rates, rules, and working conditions for

22

United flight attendants. Further, the

Agreement established an arbitration

board (System Board of Adjustment)

pursuant to section 204 of the Railway

Labor Act, 24 U.S.C. § 184 (1976). This

Board is authorized to render final,

binding decisions on grievance disputes

between United and its employees.

Barnett filed his grievance

purusant to the Agreement based upon his

contention that United improperly

adjusted his seniority status. The

System Board denied Barnett's grievance

in a decision dated September 7, 1978,

which he received "Several days later."

R., Vol. I (Amended Complaint) at 12.

On October 14, 1980, Barnett filed the

present action in federal district court.

For relief, Barnett asked the court,

inter alia, to "vacate the award of the

System Board of Adjustment ... and

°

23

restore the plaintiff to his proper

seniority statuts."2 RB.» Vein &

(Amended Complaint) at 13. The district

court dismissed the action based on

United Parcel Service, Inc. v. Mitchell,

451 U.S. 56 (1981), finding that the

applicable statute of limitations was

Colo. Rev. Stat. § 13-22-214(2) (Supp.

1982), which establishes a ninety-day

limitation period for an action brought

to vacate an arbitration award.

2 Because Barnett styled his suit in

this manner and because if he were

successful, the suit would effectively

vacate the Board's award, we will view

this as an action to vacate an

arbitration award. See United Parcel

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

61 (1981). In United Parcel, the

Supreme Court noted that even though a

plaintiff seeking review of an

arbitration award characterizes an

action in a particular manner, i.e., as

one for breach of contract, “they

overlook the fact that an arbitration

award stands between the employee and

any relief which may be awarded against

the company." Id. at 62-63 n.4.

24

Bie

The issues on appeal are (1)

whether the District Court erred in

applving the ninety-day Colorado statute

of limitations and (2) whether Barnett

timely filed this action under the

applicable statute. We hold that the

District Court erred in applying the

Colorado statute; 45 U.S.C. § 153 First

(r) (two years) is the appropriate

Statute of limiations for this cause.

We further hold, however, that Barnett

failed to file this action within the

requisite two-year limitations period.

We will, therefore, affirm the dismissal

of this action.

I.

Although air carriers are subject

to most provisions of the Railway Labor

yb

Act,3 they are expressly excepted

From § 3, 458 U.S.C. § 1353 (2976)

(hereinafer cited as "section 153").

See 45 U.S.C. § 181 (Supp. V 1981).

Section 153 provides for the

establishment of a National Adjustment

Board for railroads. Specifically, 45

U.S.C. § 153 First (r) provides for a

two-year limitations period for any

action at law brought on an award by a

division of the adjustment board. In

section 204 of the Act, 45 U.S.C. § 184

(1976), Congress authorized the airline

industry to establish “local"™ boards

having the same jurisdiction exercised

3 Air carriers are subject to § l, 45

U.S.C. § 151 (1976) (definitions); § 2,

45 U.S.C. § 15la (1976) (statement of

purposes); §§ 4 and 5, 45 U.S.C. §§ 154

and 155 (1976) (National Mediation

Board); and §§ 7, 8, and 9, 45 U.S.C. §§

157, 158, and 159 (1976) (voluntary

arbitration and emergency boards). See

§§ 201 and 202, 45 U.S.C. § 181 (Supp. V

1981) and 182 (1976).

26

by system, group, or regional boards of

adjustment authorized under section 153.

In section 205 of the Act, 45 U.S.C. §

185 (1976), Congress authorized the

National Mediation Board to establish,

when it deems necessary, a National

Board of Adjustment for air carriers

Similar to the railroads’ national board.

However, no provisions is expressly made

for a limitations period governing

actions at law to review air carrier

board decisions.

The Supreme Court has repeatedly

held that when Congess has not expressly

provided a statute of limitations

governing federal statutory actions, a

court must apply the most "'appropriate

state statute of limitations.'" United

Parcel, supra at 60 (quoting Johnson v.

Railway Express Agency, Inc., 421 U.S.

454, 462 (1975) and Auto Workers v.

27

Hoosier Cardinal Corp., 383 U.S. 696,

704-705 (1966)). The district court

adopted the appellees' position that

United Parcel is dispositive of the

issue before us. We disagree. AS we

will disascuss, the uniqueness of the

Railway Labor Act prevents the

mechanical application of United Parcel

to the circumstances before us.4

4 United Parcel was an action for

wrongful discharge brought by an

employee (a car washer) against his

employer (United Parcel Service, Inc.)

under section 301l(a) of the Labor

Management Relations Act, 29 U.S.C. §

185(a) (1976). The employee's Union

filed a grievance on his behalf, which

was submitted to arbitration before a

joint panel (union and company

representatives) pursuant to their

collective bargaining agreement. After

hearing, the joint panel rendered a

binding decision upholding the discharge.

The employee subsequently filed an

action at law under section 30l(a),

alleging that the Union had breached its

duty of fair representation and that UPS

28

a

In Occidental Life Ins. Co. v EEOC,

432 U.S. 355, 367 (1977), the Supreme

Court noted that a state statute of

limitations will not be "mechanically

applied" merely because the federal

Statute failes to expressiy provide for

a limitations period. The Court

emphasized that "'[a]Jlthough state law

is our primary guide in this area, it is

not, to be sure, our exclusive guide.'"

4 (cont.) discharged him for reasons

other than those stated, in violation of

the collective bargaining agreement.

United Parcel, supra at 58-59.

The Supreme Court held the

employee's suit was effectively one to

vacate an arbitration award. Id. at 6l.

Further, because Congress had failed to

provide an express limitations period

for section 301 actions, the "most

appropriate one provided by state law"

must be applied. Id. at 60. Thus, one

Court held that the New York ninety-day

statute of limitations for an action to

vacate an arbitration award was proper

-- it was consistent with the federal

law policy of rapidly disposing of

disputes in that sector. Id. at 63-64.

29

Id. (quoting Johnson v. Railway Express

Agency, supra at 465). We must not

borrow a state limitations period if its

application would be inconsitent with

federal policy. Occidental, supra

(citing Johnson v. Railway Express

Agency, supra; Auto Workers v. Hoosier

Cardinal Corp., supra at 701; and Bd. of

County Comm'rs v. United States, 308

U.S. 343, 352 (1939)). However, even

when a state statute appears

"appropriate," if another relevant

federal statute exists that siesexs

reflects the interests Congress intended

to protect under the federal statute in

30

question, we must apply it.®?

Johnson v. Railway Express Agency, supra

at 462.

With this directive in mind, we

hold that the two-year limitations

period expressed in section 153 First

(r) applies to actions at law brought to

review adjustment board decisions made

in the airline industry. See Gordon v.

Eastern Airlines, Inc., 268 F. Supp.

210, 212-13 (W.D.Va. 1967). But see

Richey v. Hawaiian Airlines, Inc., 533

2 In United Parcel, the Court declined

to consider an argument raised in an

amicus brief concerning the application

of a relevant federal statute of

limitations because it was not raised

in the lower courts. The majority

opinion in United Parcel dealt only with

the limited issue of which state

limitations period should be borrowed,

not the propriety of such borrowing.

See United Parcel, supra at 60 n. 2.

For a detailed discussion of this

question as it applies to section 301(a)

of the Labor Management Relations Act,

see United Parcel, id. at 65-71

(Stewart, J., concurring).

31

F, Supp. 310, 313 (M.D.Ga. 1982); Hafer

v. Air Line Pilot's Ass'n Int'l, 525 F.

Supp. 874, 877 (D. Hawaii 1981), aff'd,

698 F.2d 1230 (9th Cir. 1983). Although

the Railway Labor Act's express purpose

of settling disputes in the airline

industry in a prompt and orderly manner

would be served by applying the Colorado

ninety-day statute, the refusal to apply

section 153 First (r) would reject the

specific policy decision made by

Congress after it had viewed the

competing interests involved. Congress

determined two years as an appropriate

period for seeking judicial review of

railroad adjustment board awards in

light of the national interests in

prompt and orderly resolutions, and an

employee's interest in setting aside

what he feels is an improper award. Cf.

32

United Parcel, supra at 70 (Stewart, J.,

concurring).

After studying the entire Railway

Labor Act® and its legislative

history, it is clear that Congress

intended the exception of section 153

from air carriers to be temporary. The

"initial omission of § 153 in 1936 was

merely to postpone the establishment of ©

a National Air Transport Adjustment

Baord while the airlines industry grew.

It was not intended to provide an

interim period of confusion and chaos."

Gordon, supra at 213. See also Int'l

Ass'n of Machinists v. Central Airlines,

Inc., 372 U.S. 682, 685-90 (1963), for a

6 Generally, the intent of the Act is

to minimize interruption of the rail and

air transportation services of the

nation caused by strikes and labor

disputes, whether minor or major.

Gordon v. Eastern Airlines, Inc., 268

F. Supp. 210, 212 (W.D.Va. 1967); 45

U.S.C. § 15la (1976).

33

discussion of the history and intent of

the Railway Labor Act. Thus, the

interests balanced by Congress when it

enacted section 153 First (r) are

identical to those which would apply to

the now firmly-established airline

industry. Therefore, by applying

section 153 First (r) to actions

involving air carriers, we would be

assenting to all mandates and concerns:

to enforce the intent and purpose of the

entire Railway Labor Act, to establish

the needed uniformity in federal

procedural law for similar claims,’

and to apply a “relevant federal

7 See United Parcel, supra at 70

(Stewart, J., concurring) (quoting Auto

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 702 (1966)). Because the bulk

of the Railway Labor Act pertains to air

carriers, to apply different state laws

regarding limitations periods to similar

actions under the Act would result in

“confusion and chaos."

34

statute” in the absence of a limitations

period expressed by Congress. The

limitations period expressed in section

153 First (r) clearly "fit[(s]) hand in

glove" with an action brought before an

airline adjustment board under the

Railway Labor Act. See United Parcei,

supra at 64.

II.

We must next determine whether

Barnett filed for judicial review within

the time constraints of section 153

First (r). Section 153 First (r)

provides:

All actions at law based

upon the provisions of this

section shall be begun within

two years from the time the

cause of action accrues under

the award of the division of

the Adjustment Board, and not

after. (Emphasis added.)

The dispositive question,

therefore, is at what time the cause of

35

action "accrues." Because Barnett's

action was filed essentially to review

the Board's decision, see supra note 2,

we hold that his action accrued the date

that decision was rendered.® Gatlin

v. Missouri Pacific R.R. Co., 631 F.2d

S51, 5354-555 (8th Cir. 2980). On

September 7, 1978, the Board rendered

its decision concerning Barnett, which

8 Barnett contends that the Colorado

tolling rules, which apply to this

cause, require the word "accrued" to be

equated with the "rule of discovery."

Aprellant's Opening Brief at 18-19.

Thus, Barnett urges us to hold that his

cause accrued when he received the

letter of the Board's decision --

"several days" after October 13, 1980.

We disagree. Because we have applied

section 153 First (r) to this action,

the Colorado tolling and accrual rules

are inapplicabie. Barnett is asserting

rights based on federal law and, thus,

we are presented with a federal question.

See Gatling v. Missouri Racific R-.R.Co.,

631 F.2d 551,554 (8th Cir. 1980) (citing

Vaca v. Sipes, 386 U.S. 171, 177 (1967);

Steele v. Louisvilie & Nashville

RatsGOse 285 Uebs LOSZs £83° ECD

(1944)).

36

was final. See 45 U.S.C. §§ 153 First

(m) and 184 (1976). Pursuant to section

153 First (r), Barnett had two years

from that date to bring an action at law

in federal district court. Because he

filed his action for review on October

14, 1980, Barnett's action is untimely

and was, thus, properly dismissed by the

district court.

In sum, we reverse the district

court's finding that the Colorado

ninety-day statute of limitations to

vacate anarbitration award, but we

affirm the court's finding that Barnett

37

failed to file timely his action at

law.?

REVERSED in part and AFFIRMED in

part.

9 In rendering this opinion, we need

not address the question whether the

district court may review this final and

binding decision of the Baord. We will

note, generally, however, that the scope

of review by a federal court of a

decision by an airline system board of

adjustment is extremely narrow. See,

e.g., Hall v. Eastern Airlines, Inc.,

511 F.2d 663, 663-664 (5th Cir. 1975)

(citing Gunther v. San Diego & Arizona

Eastern R.R. Co., 382 U.S. 257, 263

(1965)); Union Pacific R.R. Co. v.

Sheehan, 439 U.S. 89, 93-95 (1978),

reh'g denied, 439 U.S. 1135 (1979)

(railroad adjustment boards).

38

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 82-1195

FRANK E. BARNETT,

Plaintiff-Appellant,

Vv.

UNITED AIR LINES, INC., et al.,

Defendants-Appellees.

Opinion filed June 21, 1984

The court does hereby grant

appellant's petition for rehearing,

recall the mandate, withdraw the opinion

in Barnett v. United Air Lines, Inc.,

729 F.2d 693 (10th Cir. 1984), vacate

the judgment, and render this Opinion on

Rehearing in lieu thereof.

Plaintiff Frank E. Barnett appeals

from an order of the district court (1)

granting Defendant-Appellee United

Airlines, Inc.'s (United) motion to

dismiss and ( 2) granting

39

Defendant-Appellee Association of Flight

Attendants' (AFA) motion for summary

judgment, on the grounds that Barnett's

claims are barred by a Colorado

ninety-day statute of limitations.

United is an air carrier subject to the

provisions of the Railway Labor Act

(RLA}, 45 8.8.6. 8S 232 8S Bee,

(1976).1 AFA is a labor

Organization representing flight

attendants, such as Barnett, employed by

United. In his amended complaint,

Barnett alleges that United violated his

contractual right under the Collective

Bargaining Agreement between United and

AFA, and that AFA breached its duty to

him of fair representation. Barnett

1 air carriers, however, are expressly

excepted from the application of § 3, 45

U.S.C. § 153. See §§ 201 and 202, 45

U.S.C. §§ 181 (Supp. V 1981) and 182

(1976).

40

argues that United improperly adjusted

his seniority status in violation of the

Collective Bargaining Agreement.

Further, he claims that AFA

"demonstrated bad faith and acted

arbitrarily and capriciously by failing

to process [his] grievance, by failing

to furnish proper representation to

[him] at the arbitration hearing, and by

failing to advise the arbitrator of

their own practice of interpreting the

collective bargaining agreement to

afford seniority credit for time served

in temporary inflight service

Supervision estates." Ras’ VOLsa &

(Amended Complaint) at 12.

The Collective Bargaining Agreement

between United and AFA controls pay

rates, rules, and working conditions for

United flight attendants. Further, the

Agreement estabished an Arbitration

41

Board (System Board of Adjustment)

pursuant to § 204 of the RLA, 45 U.S.C.

§ 184 (1976). This board is authorized

to render final, binding decisions on

grievance disputes between United and

its employees.

Barnett filed a grievance pursuant

to the Agreement based upon his

contention that United improperly

adjusted his szniority status. The

Board denied Barnett's grievance ina

decision dated September 7, 1978, a

decision of which Barnett was first

notified by a letter dated October 13,

1978, which he received "several days

later." R., Vol. I (Amended Complaint)

at id. On October 14, 1980, Barnett

filed the present action in federal

district court where the court dismissed

it based on United Parcel Service, Inc.

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

42

Te ee

district court found that the applicable

Statute of limitations was Colo. Rev.

Stat. § 13-22-214(2) (Supp. 1982), which

establishes a ninety-day limitation

period for an action brought to vacate

an arbitration award. The district

court found Mitchell controlling

apparently because Barnett styled his

Suit in a manner in which he requested

the award of the Board to be set aside

(see R., Vol. I (Amended Complaint) at

13), and a successful suit would have

effectively vacated the award. See R.,

Vol. II at 2-4; United Parcel Service,

Inc. v. Mitchell, supra at 6l.

The issues on appeal are (1)

whether the district court erred in

applying the ninety-day Colorado statute

of limitations and (2) whether Barnett

timely filed this action under the

applicable statute. We hold that the

43

district court erred in borrowing the

Colorado statute; § 10(b) of the

National Labor Relations Act (NLRA), 29

U.S.C. § 160(b) (1982) (six months), is

the appropriate statute of limitations

for this cause. We further hoid,

however, that Barnett failed to file

this action within the requisite

Six-month limitations period. We will

therefore affirm the dismissal of this

action.

Le

Background

Because the instant case arose

under the RLA, a brief explanation of

the Act and Barnett's claim will be

helpful. By enacting the RLA, Congress

intended to provide a separate and

distinct statutory scheme for labor

disputes arising in two vital national

industries, i.e., the rail industry and

44

the air carrier industry. Labor

disputes between parties in other

industries are governed by the NLRA.

Generally, the RLA recognizes two types

of disputes: (1) "major" disputes,

which relate to the formation of

collective bargaining agreements or

efforts to secure them; and (2) "minor"

disputes, which involve the

interpretation of a collective

wenesiaiie agreement, the existence of

which is not in dispute. See Elgin, J.

& E.R. Co. v. Burley, 325 U.S. 71l, 723

(1945); Transport Workers Union of

America v. American Airlines, Inc., 413

F.2d 746, 748 (10th Cir. 1969); De La

Rosa Sanchez v. Eastern Airlines, Inc.,

574 F.2d 29, 31 (lst Cir. 1978). 45

U.S.C. § 184 mandates that air carriers

and their employees, acting through

their representatives, establish system

45

boards of adjustment to resolve the

minor disputes. Machinists v. Central

Airlines, supra. See also Transport

Workers v. American Airlines, supra.

When an aggrieved party appeals an

adjustment board decision to federal

district court, the findings and order

of the board are conclusive against the

parties unless (1) the board failed to

comply with the requirements of the RLA,

(2) the board lacked jurisdiction, or

(3) there was fraud or corruption by a

member of the board. 45 U.S.C. §§

153(q) and 184 (1976).

It is well established, therefore,

that decisions by adjustment boards

which merely interpret collective

bargaining agreements are conclusive and

binding on the parties; no federal or

state court has jurisdiction to review

such a determination by an adjustment

46

board. See, e.g., Union Pacific R.R.

Co. v. Sheehan, 439 U.S. 89, 94 (1978),

reh'gq denied, 439 U.S. 1135 (1979); Air

Line Pilots Ass'n v. Northwest Airlines,

Inc., 627 F.2d 272, 275 (D.C.Cir. 1980);

De La RoSa Sanchez v. Eastern Airlines,

Supra at 32. Because Barnett claims

that United beached the Collective

Bargaining Agreement regarding the

seniority status provisions, the Board's

decision merely involved its own

interpretation of the Agreement. This

is precisely the type of dispute

Congress contemplated to be conclusively

resolved in a prompt manner by an

adjustment board. See Union Pacific

R.R. Co. v. Sheehan, supra at 94;

Brotherhood of Locomotive Fireman and

Enginemen v. Central of Georgia Ry. Co.,

199 F.2d 384, 385 (5th Cir. 1952), cert.

denied, 345 U.S. 908 (1953). Hence, the

47

district court would have been without

jurisdiction to review that claim

standing alone.

However, by styling his suit as a

hybrid involving both a contract and a

fair representation claim, barnett is

potentially able to challenge the

propriety of the Board's decision. If

an employee can estabish that his union

breached its implied duty of fair

representation, then even a binding

decision of the board can be set aside

if the breach seriously undermined the

integrity of the arbitral process.

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554, 567 (1976); Del Casal v.

Eastern Airlines, Inc., 634 F.2d 295,

299 (5th Cir. 1981), cert. denied, 454

U.S. 892 (1981). Thus, if Barnett could

show that AFA's alleged breach reached

this level, the district court could

48

also entertain jurisdiction on the

breach of contract claim.2 See Del

Casal v. Eastern Airlines, supra at

298-300.

II.

Statute of Limitations:

Applicability of DelCostello

v. International Brotherhood

of Teamsters

Inasmuch as we have established

that Barnett has a potentially valid

claim on the hybrid nature of his

action, we must now determine the

appropriate limitations period within

which that claim must be brought. In

the instant case, there is no express

2 Of course, just as with the district

court, it is not necessary for us to

decide the merits of Barnett's claims at

this preliminary stage. We discuss this

jurisdictional questicn only for the

limited purpose of showing the potential

viability of a hybrid claim such as that

presented by Barnett.

49

Statute of limitations provided in the

RLA for suits in the air carrier

industry brought by an employee either

against his employer for breach of the

collective bargaining agreement or

against his union for breach of the duty

of the duty of fair representation.

First, it is clear from the discussion

above that a sole claim involving an

alleged breach of a collective

bargaining agreement may not be

maintained in federal court. Hence,

there is obviously no express

limitations period for such a claim.

Similarly, Barnett's claim against AFA

is not controlled by an express

limitations period. Although it is well

established that an action for breach of

duty of fair representation between

parties subject to the RLA is implied

from 45 U.S.C. §§ 151 and 152, see,

50

eg., Vaca v. Sipes, 386 U.S. 171, 177

(1967); Steele v. Louisville and

Nashville R.R. Co., 323 U.S. 192, 199

and 202-03. (1944), these sections do not

provide expressly for a limitations

period. Hence, we are required to

borrow an appropriate statute of

limitations.

During the pendency of this appeal,

the Supreme Court decided the case of

DelCostello v. International Brotherhood

of Teamsters, U.S. » aes 8 C8.

2281 (1983). The Court in DelCostello

held that where an employee brought an

action under the National Labor

Relations Act (NLRA), 29 U.S.C. §§ 15l,

1)

t seg., against both his employer for

breach of the collective bargaining ~

agreement (19 U.S.C. § 185) and his

union for breach of the duty of fair

representation, the suit was governed by

51

the six-month period of limitations

mandated in § 10(b) of the NLRA, 29

U.S.C. § 160(b). Although the instant

case does not arise under the NLRA, we

nonetheless hold that on the particular

facts of this case, where Barnett made

claims against his employer and his

union similar to those in DelCostello,

the rationale of DelCostello requires

the application of the six-month period

under § 10(b) of the NLRA to Barnett's

cause of action.

The Supreme Court has repeatedly

held that when Congress has not

expressly provided a statute of

limitations governing federal statutory

actions, a court must apply the most

""appropriate state statute of

limitations.'" United Parcel Service,

Inc. v, Mitchell, supra at 60 (quoting

Johnson v. Railway Express Agency, Inc.,

52

421 U.S. 454, 462 (1975) and Auto

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 704-05 (1966)). This has been

the approach followed by some courts

when determining a limitations period

for a duty of fair representation claim

under the RLA. See Price v. Southern

Pacific Transportation Co., 586 F.2d

ae ern ows teem Cir. 1978);

Brotherhood of Locomotive Firemen and

Enginemen v. Mitchell, 190 F.2d 308, 313

(5th Cir. 1951); Gainey v. Brotherhood

of Railway and Steamship Clerks, 275 F.

Supp. 292, 306 (E.D.Pa. 1967), aff'd on

other grounds, 406 F.2d 744 (3rd Cir.

1968), cert. denied, 394 U.S. 998 (1969).

However, based on the Supreme Court's

recent directives in DelCostello and

Occidential Life Ins. Co. v. EEOC, 432

U.S. 355 91977), we decline to borrow an

53

appropriate state limitations period in

the instant case.

In Occidental, the Court noted that

a state statute of limitations will not

be “mechanically applied" merely because

the federal statute fails to provide

expressly for a limitations period. Id.

at FO? The Court emphasized that

""Tajlthough state law is our primary

guide in this area, it is not, to be

sure, our exclusive guide.'** Id.

(quoting Johnson v. Railway Express

Agency, supra at 465 ). For example, we

must not borrow a state limitations

period if its application would be

inconsistent with federal policy.

Occidental, supra (citing Johnson v.

RAilway Express Agency, supra; Auto

Workers v. Hoosier Cardinal Corp., supra

at 701; and Bd. of County Comm'rs v.

United States, 308 U.S. 343, 352 (1939)).

54

Even when a state statute appears

"appropriate," if another relevant

federal statute exits that clearly

reflects the interests Congress intended

to protect under the federal statute in

question, we must apply rt?

Johnson v. Railway Express Agency, supra

at 462.

The Court in DelCostello reaffirmed

its holding in Occidental that a court

must borrow express limitations periods

from related federal statutes when state

statutes may be unsatisfactory for the

enforcement of federal law. A083 B.C.

3 In Mitchell, the Court declined to

consider an argument raised in an amicus

brief concerning the application of a

relevant federal statute of limitations

(§ 10(b) of the NLRA) because it was not

raised at any stage of the proceedings.

The majority opinion in Mitchell dealt

only with the limited issue of which

state limitations period should be

borrowed, not the propriety of such

borrowing. See 451 U.S. at 60 n.2.

55

at 2289. The Court held that the

six-month statute of limitations

expressly provided for by § 10(b) of the

NLRA should apply to a hybrid beach of

contract/duty of fair representation

claim brought pursuant to that Act; a

breach of the implied duty of fair

representation is most analogous to an

"unfair labor practice," which is

actionable before the National Labor

Relations Board under § 10 of the NLRA.

id. at 2293. The Court reasoned that

the § 10(b) limitations period reflects

the competing interests at stake in such

a hybrid claim brought under the NLRA.

In § 10(b) of the NLRA,

Congress established a

limitations period attuned to

what it viewed as the proper

balance between the national

interests in stable bargaining

relationships and finality of

private settlements, and an

employee's interest in setting

aside what he views as an

56

unjust settlement under the

collective-bargaining system.

Id. at 2294 (quoting United Parcel

Service, Inc. v. Mitchell, supra at 70

(Stewart J., concurring)).

We find that the identical

competing interests recognized in

DelCostello are present in the instant

action brought under the RLA. Section

10(b) of the NLRA is similarly relevant

to a hybrid breach of contract/duty of

fair representation claim brought under

the RLA; thus, the reasoning and

analysis of DelCostello control in the

instant case. An employee like Barnett,

therefore, who files such a hybrid claim

under the RLA in federal district court,

must do so within the six-month period

57

provided in § 10(b) of the NLRA.#4

Welyczo v. U.S. Air, Inc., No. 83-7976

(2nd Cir. 1984).

os

Timeliness of Filing

We must next determine whether

Barnett filed this action within the

time contraints of § 10(b). Because

Barnett brought his action essentially

to review the propriety of the Board's

decision based on the alleged unfair

4 In rendering this decision, we

express no opinion about the proper

limitations period to be applied to

other possible "hybrid" claims brought

by an employee subject to the RLA. Our

decision is limited to the particular

context of "hybrid breach of contract/

duty of fair representation" claims made

by an employee pursuant to the RLA. The

reasoning applied by the Court in

DelCostello regarding the appropriate

limitations period to borrow when two

independantly viable claims are combined

might militate against borrowing the §

10(b) period in another type of “hybrid”

Situation brought under the RLA. See

103 S.Ct. at 2292.

58

representation by AFA at the hearing, we

hold that he was required to file the

action within six months of the date the

Board rendered its decision. Cf.

Butler v. Local Union 823, Internat'l

Brotherhood of Teamsters, 514 F.2d 442,

449-50 (8th Cir. 1975), cert. denied,

423 U.S. 924 (1975). Because the Board

rendered its decision on September 7,

1978, Barnett was required to file the

instant action by March 7, 1979.

Barnett filed the action, however, on

October 14, 1980, clearly beyond the

six-month limitations period. Thus, the

district court properly dismissed

Barnett's complaint. ©

REVERSED in part and AFFIRMED in

part.

59

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 82-1195

FRANK E. BARNETT,

Plaintiff-Appellant,

Vv.

UNITED AIRLINES, INC., et al.,

Defendants-Appellees.

July 10, 1984

This matter comes on for

consideration of appellant's petition

for rehearing filed in the captioned

cause.

Upon consideration whereof,

appellant's petition for rehearing is

denied.

/s/ HOWARD K. PHILLIPS, Clerk.

60